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®ntbersittp  of 

FOUNDED  BY  JOHN  D.  ROCKEFELLER 


THE  CONFISCATION  OF  PROPERTY 
DURING  THE  CIVIL  WAR 


A  DISSERTATION 

SUBMITTED  TO  THE  FACULTY  OF  THE  GRADUATE  SCHOOL  OF 
ARTS  AND  LITERATURE 


IN  CANDIDACY  FOR  THE  DEGREE  OF 

DOCTOR  OF  PHILOSOPHY 
DEPARTMENT  OF  HISTORY 


BY 

JAMES  GARFIELD  RANDALL 


UNi v  Ea 


INDIANAPOLIS : 

MUTUAL  PRINTING  AND  LITHOGRAPHING  CO. 
1913 


®mber$itp  of  Ctjtcago 

FOUNDED  BY  JOHN  D.  ROCKEFELLER 


THE  CONFISCATION  OF  PROPERTY 
DURING  THE  CIVIL  WAR 


A  DISSERTATION 

SUBMITTED  TO  THE  FACULTY  OF  THE  GRADUATE  SCHOOL  OF 
ARTS  AND  LITERATURE 


IN  CANDIDACY  FOR  THE  DEGREE  OF 

DOCTOR  OF  PHILOSOPHY 

DEPARTMENT  OF  HISTORY 


BY 

JAMES  GARFIELD  RANDALL 


INDIANAPOLIS : 

MUTUAL  PRINTING  AND  LITHOGRAPHING  CO. 
1913 


COPYRIGHTJ1913 
BY 

JAMBS  G.  RANDALL 


PREFACE 

This  monograph  is  intended  to  present  the  results  and  conclu 
sions  of  an  investigation  of  the  federal  policy  of  confiscation  dur 
ing  the  Civil  War,  undertaken  as  a  doctoral  dissertation  for  the 
Department  of  History  in  the  University  of  Chicago.  Though  the 
nature  of  such  a  study  is  sufficiently  clear  without  introductory 
comments,  and  though  its  importance  may  not  justify  an  extended 
preface,  yet  a  word  of  explanation  may  perhaps  be  in  order  as  to 
the  choice  of  subject  matter  and  the  method  pursued  in  this  short 
volume.  The  writer  has,  for  the  purpose  of  unity  of  treatment, 
excluded  various  topics  which  are  plainly  related  to  the  subject  of 
confiscation  during  the  Civil  War.  The  important,  though  unde 
veloped,  subject  of  rebel  sequestration,  for  instance,  has  been 
referred  to  only  incidentally  as  throwing  light  on  the  motives  for 
the  Union  measures  of  forfeiture.  A  unique  class  of  "property", 
namely  slaves,  is  excluded  from  consideration  here,  because  the 
study  of  this  topic  constitutes  a  substantial  problem  in  itself,  and  its 
connection  with  the  policy  of  general  confiscation  was  only  inci 
dental.  Mere  military  seizures,  pursued  in  accordance  with  the 
general  army  instructions  from  Washington,  fall  outside  the  scope 
of  the  present  study,  as  do  also  forfeiture  for  violation  of  the  non- 
intercourse  acts,  seizures  for  evasion  of  the  internal  revenue,  and 
the  capture  and  disposition  of  maritime  prizes.  These  omissions 
have  been  necessary  in  order  to  preserve  the  minuteness  of  subject 
matter  appropriate  to  monograph  treatment. 

The  method  of  presentation  pursued  throughout  the  study  is 
to  classify  the  data  regarding  seizures  under  general  heads  accord 
ing  to  the  principal  kinds  of  situations  in  which  property  might 
be  placed,  and  to  present  the  main  problems  or  lines  of  policy  which 
the  government  followed  in  taking,  trying,  and  restoring  property, 
rather  than  to  explore  the  details  of  individual  cases,  though  con 
siderable  material  of  this  sort  is  in  the  writer's  possession  derived 
from  the  original  court  records.  More  space  has  intentionally 
been  given  to  the  constitutional  and  legal  phases  of  the  subject, 
than  to  economic  and  social  considerations.  The  writer's  justifica 
tion  for  this  emphasis  is  the  highly  important  bearing  of  the  confis 
cation  question  upon  the  larger  constitutional  problems  of  the 

(Hi) 


270923 


IV  PREFACE 

Civil  War,  about  which  much  remains  still  to  be  written.  The  study 
in  its  present  form  represents  the  results  of  frequent  revisions, 
which  doubtless  give  a  tone  of  severe  condensation,  but  it  is  hoped 
that,  whatever  graces  of  style  may  have  been  sacrificed,  clearness 
has  at  least  been  maintained. 

The  sources  used  are  indicated  in  the  section  on  bibliography 
and  in  the  footnotes.  Besides  published  documents,  statutes, 
debates,  decisions,  and  records,  the  writer  has  had  access  to  such 
unpublished  material  as  the  federal  district  court  records,  the  files 
of  the  Attorney-General's  office,  and  of  the  Treasury  Department, 
and  the  captured  records  of  the  Confederacy.  The  author's  chief 
acknowledgments  are  due  to  Professor  C.  H.  Van  Tyne.  of  the 
University  of  Michigan,  with  whose  valuable  help  the  work  was 
begun  as  a  seminary  study,  to  Professor  A.  C.  McLaughlin,  of  the 
University  of  Chicago,  whose  suggestions  and  comments  on  the  first 
draft  of  the  manuscript  have  been  of  the  greatest  assistance,  and 
to  the  various  officers  at  Washington  to  whom  application  was 
made  for  the  privilege  of  examining  the  archives.  Particular 
acknowledgment  in  this  connection  is  due  to  the  kindness  of  the 
officials  of  the  Miscellaneous  Division  of  the  Treasury  Depart 
ment.  It  should  be  noted  at  this  point  that  portions  of  the  disserta 
tion  have  been  published  in  the  American  Historical  Review,  in 
the  number  for  October,  1912. 

JAMES  G.  RANDALL. 
Salem,  Virginia, 

February  19,  1913. 


TABLE  OF  CONTENTS 

I  THE  LEGISLATIVE  POLICY  OF  CONFISCATION 7 

Introductory  Statement — Influences  tending  to  the  Development 
of  the  Confiscation  Policy — Proceedings  in  Congress  relative  to 
the  Confiscation  Acts — Attitude  of  President  Lincoln. 

II  THE  PROCESS  AND  EXTENT  OF  JUDICIAL  CONFISCATION 13 

Method  of  Executing  the  Acts — Difficulties  Encountered  by  the 
Law  Officers  of  the  Government — Instructions  of  the  Attorney- 
General — Measures  for  Securing  Information  against  Property — 
Statistics  and  Considerations  regarding  the  Extent  of  Confisca 
tion. 

III  CONFISCATION  AS  A  BELLIGERENT  RIGHT 16 

The  Problem  Stated — Views  of  Early  Authorities  on  Interna 
tional  Law — Decision  of  the  Supreme  Court  in  Miller  v.  United 
States. 

IV  THE  PROBLEM  OF  REBEL  STATUS 19 

Attitude  of  Congressmen  regarding  "Rebel"  Status — The  Judi 
cial  Interpretation  of  the  Problem  in  McVeigh  v.  United  States — 
The  Question  whether  a  "Rebel"  should  have  a  Hearing  in  a 
Federal  Court. 

V  THE  DURATION  OF  THE  FORFEITURE 24 

Extraordinary  Decision  of  Judge  Underwood  in  the  Latham 
Case — Opinion  of  the  Supreme  Court  in  Bigelow  v.  Forrest — The 
Duration  of  Forfeitures  under  the  Act  of  1861. 

VI  REVERSIONARY  RIGHTS  IN  CONFISCATED  PROPERTY 26 

The  Meaning  of  the  Suspended  Fee — The  Decision  in  Wallach 
v.  Van  Riswick — Reversal  of  the  Wallach  Decision. 

VII  THE  CONSTITUTIONALITY  OF  THE  CONFISCATION  ACTS.  . .  .29 

Related  Decisions  of  the  Supreme  Court  touching  the  Funda 
mental  Character  of  the  War  in  the  Prize  Cases — Constitu 
tionality  upheld  in  the  Miller  Case.  Opinion  of  the  Dissenting 
Judges  in  the  Miller  Case. 

VIII  FORFEITURES  UNDER  THE  DIRECT  TAX  LEVY 33 

Provisions  for  Enforcing  the  Direct  Tax  in  the  South — Con 
trast  between  these  Forfeitures  and  Ordinary  Tax  Sales — The 
Seizure  of  Arlington — Special  Inequalities  in  the  South  Carolina 
Forfeitures. 

IX  CAPTURED  AND  ABANDONED  PROPERTY 39 

System  Established  for  collecting  Captured  Property  in  the 
South — Difficulties  Involved — Use  of  Permits — Extent  of  Opera 
tions  under  the  Captured  Property  Act. 

(v) 


VI  TABLE  OF   CONTENTS 

X  THE  ADMINISTRATION  OF  ABANDONED  ESTATES 44 

Method  of  Controlling  Deserted  Plantations  and  Estates- 
Effects  of  this  Control — Difficulties  of  Management. 

XI  THE  RESTORATION  OF  PROPERTY 46 

Restoration  of  Property  judicially  Seized — Direct  Methods  of 
Release — Action  of  the  Freedmen's  Bureau. 

XII  RESTORATIONS  BY  THE  COURT  OF  CLAIMS 49 

Rules  adopted  by  the  Court  regarding  Restorations — Consid 
erations  regarding  the  Situation  of  Union  Sympathizers  in  the 
South — Amount  of  Business  handled  by  the  Court  of  Claims — 
Action  of  the  Supreme  Court  in  the  Klein  Case  concerning  the 
Effect  of  Pardons — The  Two-year  Limitation  for  the  Prosecution 
of  Suits  before  the  Court  of  Claims — Various  Recent  Reports  and 
Proposals  regarding  these  Claims — Erroneous  Views  concerning 
the  "Captured  Property  Fund". 

BIBLIOGRAPHY    56 

INDEX   68 

TABLE  OF  CASES..  ..71 


I.    THE  LEGISLATIVE  POLICY  OF  CONFISCATION 

THE  annals  of  the  Civil  War  furnish  many  instances  of  the  use 
of  extreme  methods  in  crippling  an  enemy.  To  those  who  approach 
the  study  of  this  period  after  an  interval  of  a  half  century  certain 
of  the  measures  employed  on  both  sides  seem  to  be  clearly  outside 
the  limits  prescribed  in  civilized  warfare,  while  other  measures 
appear  to  occupy  the  borderland  between  what  is  forbidden  and 
what  is  allowed.  To  the  latter  class  belong  the  acts  by  which  the 
Union  government  confiscated  the  private  property  of  those  who 
adhered  to  the  Confederate  cause.  ^The  employment  of  a  similar 
measure  by  one  of  the  great  nations  today  would  be  generally  con 
demned,  and  grave  doubts  were  raised  at  the  time  as  to  the  justice 
of  such  a  policy. } 

Our  concern  in  the  succeeding  pages  will  be  to  see  how  the 
confiscation  policy  developed  after  a  long  and  trying  Congressional 
struggle,  to  observe  the  extent  of  friction  and  annoyance  caused 
by  the  enforcement  of  the  acts,  and  to  examine  the  problems  of 
legal  interpretation  with  which  the  judges  of  the  period  labored. 
Besides  the  Confiscation  Acts  proper  we  shall  take  into  view  vari 
ous  forfeitures  in  which,  under  other  names  and  forms,  essentially 
similar  principles  with  reference  to  the  treatment  of  property  were 
applied.  In  the  administration  of  the  direct  tax  in  the  South,  for 
instance,  a  form  of  forfeiture  was  adopted  which  amounted,  virtu 
ally,  to  confiscation.  The  same  was  true  of  the  collection  of  cap 
tured  cotton  by  the  treasury  officials,  and  the  administration  of 
abandoned  estates  which  fell  into  Union  possession.  These  forms 
of  seizure  will  claim  our  attention  then,  as  representing  virtual 
confiscation.  Our  inquiry  extends  also  to  the  final  disposition  of 
the  property,  as  well  as  its  original  forfeiture,  and  this  involves 
a  study  of  the  various  methods  of  restoration  which  were  adopted 
after  the  war. 

To  trace  the  policy  of  confiscation  to  its  origin  would  perhaps  be 
impossible  since  it  arose  from  widely  scattered  sources,  but  the 
earliest  official  suggestion  looking  to  the  forfeiture  of  "rebel" 
property  seems  to  have  been  that  of  Secretary  of  the  Treasury 

(7) 


8  THE   CONFISCATION   OF   PROPERTY  DURING   THE   CIVIL   WAR 

Chase,  who,  in  1861, :  before  the  matter  came  up  in  Congress,  urged 
the  financial  advantages  of  confiscation.  A  formidable  array  of 
petitions  received  in  Congress  from  loyal  citizens  in  various  parts 
of  the  North  and  even  of  the  South  during  the  year  1861-1862 
indicates  that  the  subject  had  attracted  a  lively  attention  throughout 
the  country.2  But  a  factor  of  far  more  influence  was  the  action  of 
the  Confederate  government  in  sequestering  northern  debts.  A  Con 
federate  statute  of  May  21,  1861,  forbade  the  payment  of  debts  due 
to  northern  individuals  or  corporations,  authorizing  their  payment 
into  the  Confederate  treasury,  and  an  act  of  August  30  provided 
for  the  sequestration  of  the  property  of  "aliens",  by  which  term 
was  meant  all  those  adhering  to  the  Union  cause.3  In  view  of  these 
acts  it  was  urged  in  Congress  that,  aside  from  the  general  question 
of  the  justice  of  confiscation,  a  sweeping  measure  of  forfeiture  had 
practically  been  forced  upon  the  Union  government  by  the  action 
of  the  enemy. 

The  first  confiscation  law,  a  measure  of  limited  scope,  applying 
only  to  property  (including  slaves)  actually  employed  in  the  aid  of 
insurrection,  was  introduced  in  the  first  session  of  the  Thirty- 
Seventh  Congress  in  the  summer  of  1861. 4  It  was  urged  by  such 
radical  leadership  as  that  of  Thaddeus  Stevens  of  Pennsylvania,5 
considered  with  as  much  deliberation  as  the  crowded  business  of 
this  short  session  would  allow,  and  became  a  law  on  August  6.  So 
far  as  the  pure  principle  of  confiscation  was  concerned,  these  debates 
were  unimportant.  The  absorption  of  Congress  in  more  pressing 
matters,  and  the  introduction  of  the  amendment  regarding  slaves 
prevented  a  full  discussion  of  the  constitutional  and  legal  merits  of 
the  confiscation  question.  Indeed  it  was  only  in  the  House  of  Rep 
resentatives,  and  there  but  briefly,  that  the  real  issue  of  confiscation 
was  debated  at  all.  We  must  look  therefore  to  the  next  session  of 

1  Finance    Report,   1861,    pp.    12-13. 

2  During    the    month    from    April    1    to    May    1,    1862,    the    following   petitions 
regarding  confiscation  were  received  in  the  House :    from  Citizens  of  Wisconsin 
(House  Journal,  37   Cong.,   2  sess.,  p.   494)  ;  Citizens  of  Marion  County,  Indiana, 
p.  499  ;  Citizens  of  Ohio,  p.  567  ;  Citizens  of  Springfield,  Ohio,  p.  620  ;  of  Warren 
County,  Ohio,  p.  624  ;  of  Hamilton  County,  Ohio,  p.    634  ;  of  Cincinnati,  Ohio,  p. 
634.     See  also  Senate  Journal,  37  Cong.,  2  sess.,  pp.   90-692,  passim. 

8  Statutes  at  Large,  Provisional  Government  of  the  Confederate  States  of 
America,  p.  201. 

4  July  15,  1861.  Cong.  Globe,  37  Cong.,  1  sess.,  p.  120.  For  the  final  statute 
see  Stat.  at  Large,  XII.  319. 

6  Cong.  Globe,  37  Cong.,  1  sess.,  p.  414. 


THE    LEGISLATIVE   POLICY   OF   CONFISCATION 

the  Thirty-Seventh  Congress  for  a  full  treatment  of  the  difficult 
points  involved. 

It  requires  laborious  application  to  follow  the  second  confisca 
tion  measure  along  its  tortuous  course  through  the  long  session  of 
the  Thirty-Seventh  Congress.  The  subject  was  under  frequent  con 
sideration  during  the  whole  of  this  session  from  December,  1861, 
to  the  following  July.  On  the  opening  day,  December  2,  Senator 
Lyman  Trumbull  of  Illinois,  a  radical  Republican,  gave  notice  of 
his  intention  to  introduce  "a  bill  for  the  confiscation  of  the  property 
of  rebels  and  giving  freedom  to  the  persons  they  hold  in  slavery"  ;6 
on  the  5th  he  presented  his  bill  with  brief  arguments  in  its  support  ;7 
later  as  chairman  of  the  Committee  on  Judiciary  he  redrafted  the 
measure,8  and  it  was  around  this  nucleus  that  legislative  confiscation 
developed.  According  to  Trumbull's  bill,  the  property  of  all  persons 
out  of  reach  of  ordinary  process  of  law  who  were  found  in  arms 
against  the  United  States  or  giving  aid  or  comfort  to  the  rebellion, 
was  to  be  forfeited,  the  seizures  to  be  carried  out  by  such  officers, 
military  or  civil,  as  the  President  should  designate  for  the  purpose. 
There  were  no  enumerated  classes,  the  liability  to  forfeiture  being 
based  simply  upon  participation  in  the  rebellion.  The  bill  in  this 
stage  differed  widely  from  the  measure  which  was  finally  enacted, 
but  the  debates  are  none  the  less  instructive,  since  most  of  those  who 
spoke  dealt  with  the  general  question  rather  than  with  details. 

In  both  houses  the  supporters  of  confiscation  were  Republicans 
of  the  more  northern  states,  while  its  opponents  were  men  of  the 
border  states  and  northern  Democrats.  The  advocates  of  confisca 
tion  joined  in  urging  the  necessity  of  a  measure  to  punish  the 
"rebels" ;  stress  was  laid  on  the  importance  of  crippling  the  finan 
cial  resources  of  the  Confederacy,  at  the  same  time  adding  to  those 
of  the  Union,  and  it  was  urged  that  in  a  struggle  so  gigantic  the 
Union  government  should  exercise  the  supreme  power  of  self- 
defense.  On  constitutional  and  legal  questions,  however,  there  was 
no  such  harmony  of  opinion.  To  raise  such  points  as  the  war  power 
of  Congress,  the  status  of  the  "rebels",  the  legal  character  of  the 
Civil  \\~ar,  the  restrictions  of  the  attainder  clause  of  the  Constitu 
tion,  the  belligerent  rights  as  against  the  municipal  power  of  Con- 

*Ibid.,  2  sess.,  p.    1. 
T  Ibid.,  p.    18. 
"Ibid.,  p.   942. 


10        THE  CONFISCATION   OF   PROPERTY  DURING   THE  CIVIL   WAR 

gress,  was  to  reveal  a  deplorable  confusion  of  logic,  and  a  jarring 
of  opinions  even  among  those  who  voted  together.  United  in  their 
notion  as  to  the  practical  result  sought,  the  supporters  of  confisca 
tion,  it  would  seem,  had  as  many  different  views  regarding  the 
constitutional  justification  of  their  measure  as  there  were  individual 
speakers.  Among  the  opponents  of  confiscation,  inconsistencies  and 
contradictions  were  no  less  frequent.  Some  of  the  speakers  regarded 
the  measure  as  too  extreme ;  others  denounced  its  unconstitutionality ; 
others  spoke  for  a  policy  of  clemency  or  argued  the  inexpediency  of 
the  project. 

As  the  discussion  proceeded  the  possibility  of  securing  a  plan 
upon  which  all  could  agree  became  fainter.  While  the  question 
would  not  down,  each  time  of  its  recurrence  seemed  to  present  new 
difficulties.  Motions  to  substitute  radically  different  measures  for 
the  bill  in  hand,  motions  to  postpone,  motions  to  refer,  and  motions 
to  amend,  were  continually  being  pushed,  but  these  only  served  to 
delay  and  prolong  the  deliberations,  and  many  a  formidable  speech 
on  the  merits  of  the  question  was  delivered  when  in  reality  the 
matter  before  the  House  was  one  of  parliamentary  routine.  Finally, 
after  months  of  intermittent  debate,  after  the  appointment  in  each 
house  of  a  select  committee,11  the  matter  was  adjusted  by  a  con 
ference  committee  of  both  houses,10  and  thus  a  measure  was  evolved 
which  passed  the  two  branches  of  Congress. 

As  finally  passed,  the  second  confiscation  law  bore  the  title,  "An 
Act  to  suppress  Insurrection,  to  punish  Treason  and  Rebellion,  to 
seize  and  confiscate  the  Property  of  Rebels,  and  for  other  Pur 
poses''.11  The  first  four  sections,  drawn  from  the  Senate  bill,  relate 
to  the  crime  of  treason  and  rebellion  and  prescribe  punishments.  Sec 
tions  5  and  6  declare  the  forfeiture  to  the  United  States  of  the 
property  of  certain  specified  classes  of  "rebels".  A  distinction  was 
made  between  two  main  groups.  The  property  of  all  officers  whether 
civil,  military,  or  naval,  of  the  Confederate  government  or  of  any 
of  the  "rebel"  states,  and  of  citizens  of  loyal  states  giving  aid  or 
comfort  to  the  rebellion,  was  declared  seizable  at  once  without  quali 
fication.  Other  persons  in  any  part  of  the  United  States  who  were 

9  Cong.  Globe,  37  Cong.,  2  sess.,  pp.  1846,  1991. 

10  Ibid.,  p.  3166. 

11  Stat.    at   Large,   XII.    589.      The    expression    "other   purposes"    referred    to 
those  sections  of  the  statute  which  provided  for  the  forfeiture  of  slaves. 


THE   LEGISLATIVE   POLICY   OF   CONFISCATION  11 

engaged  in  or  aiding  the  rebellion  were  to  be  warned  by  public  proc 
lamation  and  given  sixty  days  in  which  to  return  to  their  allegiance ; 
if  they  failed  to  do  so  their  property  was  to  be  confiscated.  Pro 
ceedings  against  suspected  property  were  to  be  instituted  in  the 
federal  district  or  circuit  courts,  and  the  method  of  trial  was  to 
conform  as  nearly  as  might  be  to  that  of  revenue  or  admiralty  cases. 
If  found  to  belong  to  a  person  who  had  engaged  in  rebellion,  or 
who  had  given  it  aid  or  comfort,  the  goods  were  to  be  condemned 
"as  enemy's  property"  and  to  become  the  property  of  the  United 
States.  The  proceeds  were  to  be  paid  into  the  treasury  of  the 
United  States,  and  applied  to  the  support  of  the  armies.  Three 
important  sections,  referring  to  slaves,  do  not  concern  us  here.  By 
section  13  the  President  was  given  power  to  pardon  offenses  named 
in  the  act. 

An  analysis  of  the  vote  on  this  measure  shows  that  the  division 
resulted  from  a  complication  of  sectional  with  party  interests.  In 
the  House  of  Representatives  the  count  stood  eighty-two  to  sixty- 
eight.12  Of  the  supporters  of  the  bill,13  seventy-seven  were  Repub- 
licans  representing  constituencies  north  of  the  Ohio.  All  but  three 
of  the  Democrats  who  voted  opposed  the  bill.  No  such  solidarity 
was  to  be  found  in  the  majority  party,  for  twenty  of  the  Republican 
or  Unionist  members  answered  "nay".  Of  the  twenty-five  border 
state  men  all  but  three  voted  with  the  opposition.14  In  the  Senate 
the  measure  received  twenty-seven  affirmative  and  thirteen  negative 
votes.15  Eight  of  those  voting  in  the  negative  were  border  state 
men,  while  only  seven  were  thorough  Democrats,  showing  again  the 
large  part  which  sectional  sympathies  played  in  determining  the  vote. 

But  the  measure  was  not  yet  law.  President  Lincoln,  who  had 
never  expressed  more  than  a  mild  approval  of  confiscation,  objected 
to  several  features  of  the  congressional  bill  and  prepared  a  rather 
elaborate  veto  message.16  The  measure,  he  said,  would  result  in  the 

"  Cong.   Globe,  37   Cong.,  2  sess.,  p.   2361. 

11  The  three  Democrats  who  favored  the  bill  were :  William  G.  Brown,  from 
the  loyal  portion  of  Virginia,  John  Hickman,  a  Douglas  Democrat  from  Penn 
sylvania,  and  John  W.  Noell,  a  Union  Democrat  of  Missouri. 

14  Besides  Brown  and  Noell  the  only  border  state  man  who  favored  confisca 
tion    was    the    intense    Unionist    and    friend    of    Lincoln,    Ftancis    P.    Blair    of 
Missouri. 

15  Cong.  Globe,  37  Cong.,   2  sess.,  p.  3276. 

"Senate  Journal,  37  Cong.,  2  sess.,  July  17,  1862,  pp.  872-874;  National 
Intelligencer,  July  18,  1862. 


12         THE   CONFISCATION    OF   PROPERTY   DURING   THE   CIVIL   WAR 

divesting  of  the  title  to  real  estate  forever.  "For  the  causes  of  trea 
son",  he  pointed  out,  ''and  for  the  ingredients  of  treason  not  amount 
ing  to  the  full  crime",  it  declared  forfeitures  extending  beyond  the 
lives  of  the  guilty  parties.  This  feature  of  the  bill  the  President 
regarded  as  a  violation  of  the  attainder  clause  of  the  Constitution. 
Further  he  argued  that  the  act  by  proceedings  in  rem  would  forfeit 
property  "without  a  conviction  of  the  supposed  criminal,  or  a  per 
sonal  hearing  given  him  in  any  proceeding".  When  it  was  known 
in  Congress  that  President  Lincoln  intended  to  veto  the  bill,  a  rather 
unusual  proceeding  was  resorted  to.  A  joint  resolution  was  rushed 
through  both  houses  which  was  intended  as  "explanatory"  to  the 
original  measure.17  In  accordance  with  this  resolution,  the  law  was 
not  to  be  construed  as  applying  to  acts  done  prior  to  its  passage,18 
nor  "as  working  a  forfeiture  of  the  real  estate  of  the  offender  be 
yond  his  natural  life".  Although  this  left  an  important  part  of  his 
objections  untouched  (i.  c.,  as  to  the  condemnation  of  property 
without  allowing  a  personal  hearing  to  the  supposed  criminal), 
Lincoln  approved  the  measure  in  its  modified  form,  and  on  the  last 
day  of  the  session,  July  17,  1862,  he  signed  the  act  and  the  explana 
tory  resolution  "as  substantially  one".19 

17  Stat.  at  Large,  XII.  627  ;  Cong.  Globe,  37  Cong.,   2  sess.,  p.  3380. 

18  In  Conrad  v.  Waples,   96  U.  S.  279,  it  was  decided  that  confiscation  under 
the  act  of  July  17,  1862,  applied  only  to  the  property  of  persons  who  might  there 
after  be  guilty  of  acts  of  treason  and  disloyalty.     For  judicial  interpretation  of 
the  duration  feature   of  the  resolution,   see  Wallach   v.   Van   Riswick,    92   U.   S. 
208  ;  Bigelow  v.  Forrest,  9  Wallace  339  ;  infra,  pp.  24-28. 

19  Senate  Journal,  37  Cong.,  2  sess.,  July  17,  1862,  pp.   871-872. 


II.     THE  PROCESS  AND  EXTENT  OF  JUDICIAL 
CONFISCATION 

THESE  widely  different  measures  of  confiscation  were  put  into 
operation  side  by  side,  and  remained  so  during  the  war.20  By  the 
terms  of  each  of  the  statutes,  the  forfeiture  of  property  was  made 
a  strictly  judicial  process,  enforced  through  the  federal  district 
courts  under  the  direction  of  the  Attorney-General  and  the  district 
attorneys.  Information  concerning  confiscable  property  might  reach 
the  federal  officials  through  regular  channels,  as  by  the  deposition 
of  a  United  .States  commissioner;  it  might  be  supplied  gratuitously 
by  some  citizen  informer,  or  it  might  be  secured  by  the  interception 
of  letters  and  despatches  intended  for  Confederate  owners.  The  7 
application  of  the  laws,  it  must  be  remembered,  was  limited  to  those  / 
districts  where  federal  courts  were  in  operation,  and,  since  jurisdic 
tion  depended  upon  situs,21  the  property  contemplated  for  seizure 
must  be  located  in  the  north  though  owned  by  "rebels". 

In  beginning  suit,  a  libel  of  information,  analogous  to  that  de 
nounced  against  smuggled  goods,  would  be  filed  with  the  district 
attorney ;  a  monition  or  public  advertisement  would  then  be  issued  by 
the  marshal  summoning  the  owner  to  appear  in  court  and  establish 
his  loyalty ;  then  would  follow,  at  its  proper  time  on  the  docket,  the 
suit  itself,  and  in  case  of  condemnation,  the  marshal  would  be 
directed  to  sell  the  property  at  public  auction,  turning  the  proceeds, 
after  the  payment  of  costs,  into  the  public  treasury. 

The  difficulties  of  enforcing  these  acts  made  the  work  exceed 
ingly  distracting  to  the  officials.  No  distinct  department  of  justice 
existed  at  that  time22  and  the  office  of  the  Attorney-General,  to  whom 
legal  questions  were  referred,  was  inadequate  to  the  handling  of  any 

20  The  existence  of  the  two  acts  side  by  side  produced  not  a  little  confusion. 
Prosecutions  in  a  given  case  might  be  instituted  under  either  act  or  under  both, 
according  to  the  circumstances.     In  the  Wiley  case  (Annual  Cycl.,  1863,  p.  220) 
the  libel  was  under  the  act  of  1861,  and  the  proof  under  that  of  1862. 

21  A  district  court   In   New   York,  for  instance,  could  not   acquire  jurisdiction 
over  the  stock  of  an  Illinois  corporation.     U.  S.  v.   1756  Shares  of  Stock,  27  Fed. 
Cas.   337. 

22  The   establishment   of   the   department    of   justice   did   not   take   place   until 
June  22,  1870.     Stat.  at  Large,  XVI.  162. 

(13) 


14        THE   CONFISCATION    Ol?   PROPERTY  DURING   THE   CIVIL   WAR 

considerable  amount  of  business.23  Both  the  published  reports  and 
the  manuscript  records  of  the  office  indicate  that  its  machinery  was 
slow  in  starting,  and  it  seems  to  have  encountered  considerable 
friction  when  it  did  start.  Upon  the  difficult  legal  questions  which 
arose  in  connection  with  the  initiation  of  proceedings,  there  was  con 
siderable  confusion  of  thought  in  the  minds  of  the  district  attorneys, 
and  little  help  in  this  matter  was  secured  from  the  office  of  the 
Attorney-General  who  invariably  "declined  to  advise  the  law  officers 
of  the  government  as  to  what  constitutes  a  proper  case  for  action 
under  the  law".24  The  local  officers,  thus  left  to  their  own  respon 
sibility,  naturally  hesitated  to  bring  action,  and  this  difficulty  was 
augmented  by  the  fact  that  no  regular  provision  was  made  for 
defraying  the  preliminary  expenses  of  preparing  a  suit  in  cases 
where  the  government  might  fail  to  secure  conviction. 

\         Taken  all  together,  therefore,  this  seemingly  smooth  and  work 
able  method  of  seizure  was  seen  to  involve  serious  obstacles.     The 

)  very  correctness  and  completeness  of  the  judicial  process  made  it 
impracticable  in  a  strenuous  time  when  things  had  to  be  done 
quickly,  and  when  a  dilatory  execution  would  seem  to  defeat  the 
*  whole  purpose  of  the  law.  It  was  natural  under  the  circumstances 
for  an  impatient  general  or  provost-marshal  to  take  the  law  into  his 
own  hands  and  by  his  summary  action  become  involved  in  disputes 
with  the  judiciary.  These  vigorous  men  regarded  confiscation  as  a 
war  measure,  and  proceeded  to  carry  it  out  as  such.25  It  was  doubt 
less  the  purpose  of  Congress,  however,  to  guard  carefully  the  exer 
cise  of  a  power  so  formidable,  and  one  which  might  be  put  to  so 
great  abuse. 

In  view  of  these  distracting  conditions  the  lax  and  irregular 
enforcement  of  the  acts  will  not  cause  surprise.  Though  a  con 
siderable  litigation  was  occasioned,  the  net  results,  after  deducting 

28  The  total  monthly  pay-roll  at  this  period  amounted  to  only  $1,522.06.  while 
the  schedule  of  salaries  showed  only  eight  employees  in  the  entire  office,  the 
Attorney-General,  assistant  attorney-general,  chief  clerk,  four  assistant  clerks, 
and  one  messenger.  (These  data  are  revealed  in  the  files  of  the  Attorney- 
General's  office,  Washington,  for  September,  1864.) 

"Acting  Attorney-General  T.  J.  Coffee  to  R.  I.  Milton,  U.  S.  Commissioner, 
Albany,  New  York,  September  2,  1861.  (Letter-Book  "B  4",  Dept.  of  Justice,  p. 
147.  A  series  of  such  letters  of  instruction  was  issued  to  district  attorneys  and 
marshals  during  the  same  month.  The  one  cited  is  merely  typical.) 

25  Instances  of  conflict  between  civil  and  military  officers  regarding  confisca 
tion  were  not  uncommon.  A  dispute  arose  over  a  military  seizure  of  property 
in  Washington  belonging  to  John  A.  Campbell,  Confederate  assistant  secretary 
of  war.  House  Ex.  Doc.  M,  37  Cong.,  3  sess.  For  General  Lew  Wallace's  action 
in  directing  extensive  military  seizures  in  Maryland  see  Official  Record,  third 
series,  IV.  407,  413.  431. 


THE    PROCESS    AND   EXTENT    OF   JUDICIAL    CONFISCATION'  15 

the  heavy  judicial  costs.26  and  after  allowing  for  cases  dismissed,  | 
appealed,   "settled   without   suit",   or   in   which    the   judgment   was   I 
entered  for  the  claimant,  were  almost  incredibly  small.27     In  New 
York,  $19.614;  in  Louisiana.  $67.973;  in  West  Virginia,  $11.000; 
in  Indiana,  $5,737 — these  sums,  so  far  as  mere  financial  totals  can 
tell  the  story,  are  representative  of  the  extent  of  the  confiscations. 
According  to  a  report  of  the  solicitor  of  the  Treasury  Department 
dated  December  27.  1867,  the  total  proceeds  actually  paid  into  the 
treasury   up  to   that   time   amounted   to   the   insignificant   sum   of    if 
$129,680.-*     In  comparison  with  these  figures,  the  confident  predic 
tions  of  the  supporters  of  confiscation  in  Congress  as  to  the  material 
weakening  of  the  enemy's  resources  sound  strange  indeed.     This 
plausible   justification,   then,    of   a   policy   so   extreme   as    that   of 
general  confiscation  was  based  on  an  unfortunate  miscalculation. 
Enough  indeed  was  done  to  work  individual  hardship,  and  to  add 
to  the  bitter  feelings  following  the  war,  but  the  comparatively  few 
transfers    of    property   gave   the    Union    government    no    material 
advantage  at  all  sufficient  to  justify  so  questionable  a  war  measure. 
Financially,  it  may  be  said,  confiscation  was  a  failure,  while  the  I 
other  purpose  of  the  act,  that  of  punishing  the  "rebels'',  was  very  f 
unequally  accomplished. 

-"  The  cost  attached  to  the  filing  and  publication  of  the  libel,  and  the  fees 
charged  by  the  district  attorney,  clerk,  and  marshal,  always  reduced  by  a  large 
proportion  the  balance  remaining  to  the  United  States.  The  following  case  pre 
sents  a  rather  striking  coincidence,  the  various  items  of  expense  forming  a  totaJ 
which  corresponds  exactly  to  the  amount  of  the  proceeds.  Files  of  U.  S.  District 
Court  for  Indiana,  case  no.  205,  January  17,  1863. 

Proceeds  of  sale    (of  "credits  etc.") $202.00 

Marshal's  costs    51.36 

Marshal's  fees    63.27 

Docket  fees 40.00 

Clerk's    costs 44.12 

Clerk's    fees    3.25  $202.00 

Balance   for  United   States  treasury    0. — 

-'  An  examination  of  the  docket  books  and  files  of  the  federal  district  court 
in  Indiana  reveals  83  cases  of  confiscation  between  September,  1862,  and  May, 
1865.  Of  these,  44  resulted  in  forfeiture.  The  property  seized  was  miscellaneous 
in  character,  including  real  estate,  credits,  cash,  judgments  in  court,  commercial 
stocks,  government  bonds,  cotton,  whiskey,  a  stallion,  and  a  steam-engine.  In 
the  District  of  Columbia,  from  May,  1863,  when  condemnations  began,  to  Septem 
ber,  1865,  the  number  of  cases  docketed  was  52,  and  the  number  of  forfeitures 
27.  The  totals  given  in  the  annual  reports  of  the  solicitor  of  the  treasury  are 
unsatisfactory,  since  he  combines  confiscation  suits  with  forfeitures  under  non- 
intercourse  regulations,  and  sometimes  with  prize  cases.  See  Finance  Reports, 
1863,  p.  90,  1864,  p.  88. 

**  Sen.  Ex.  Doc.  58,  40  Cong.,  2  sess.  This  report  of  the  solicitor  was  based 
upon  the  financial  returns  which  marshals  were  required  to  make  to  the  Treas 
ury  Department.  The  total  which  it  shows  does  not  include  the  returns  in  the 
District  of  Columbia,  amounting  to  $33,265,  which  were  deposited  in  the  registry 
of  the  court  and  later  restored  to  the  owners.  It  excludes  also  the  proceeds 
of  the  Virginia  confiscations,  because  of  the  fact  that  the  clerk  of  the  district 
court  of  that  state  was  a  defaulter  to  the  extent  of  $91,579.29.  The  proceeds 
of  the  Kansas  cases  were  not  reckoned  in  for  a  similar  reason.  By  the  addi- 
t.on  of  such  sums  as  these  the  net  proceeds  of  confiscation  will  be  seen  to  approx 
imate  $275,000.  (Considerable  unpublished  material  relating  to  the  Virginia 
confiscations,  comprising  letters,  receipts,  depositions,  and  reports  of  investi 
gating  officers,  may  be  found  in  the  files  of  the  Miscellaneous  Division  of  the 
Treasury  Department,  marked  "Cotton  and  Captured  Property  Record,  1370". 
Regarding  the  Kansas  cases,  see  Osborn  v.  U.  S.,  91  U.  S.  474.) 


III.     CONFISCATION  AS  A  BELLIGERENT  RIGHT 

IN  the  field  of  judicial  interpretation  the  confiscation  problem 
proved  equally  as  troublesome  as  in  Congressional  debate  or  in  its 
official  enforcement.  The  relation  of  confiscation  to  the  rules  of 
international  law  was,  to  begin  with,  the  source  of  continual  con 
fusion.  When  the  confiscation  policy  was  under  discussion  both 
sides  appealed  to  the  law  of  nations  for  a  support  of  their  claims. 
As  usual  in  such  controversies,  much  would  have  been  gained  if  the 
direct  issue  had  been  clearly  stated  and  kept  in  mind.  Freed  from 
its  entanglements  the  question  amounts  to  this :  Does  the  law  of 
nations  allow  to  a  belligerent  in  a  public  war  the  right  to  confiscate 
whatever  property,  within  reach  of  its  courts,  belongs  to  the  enemy? 
Numerous  misapprehensions  and  inaccuracies,  however,  entered  into 
the  actual  discussion  of  this  issue.  There  was  great  difference  of 
opinion  as  to  the  applicability  of  the  rules  of  international  law  to  the 
conflict  then  waging.  Was  the  struggle  to  be  regarded  as  a  domestic 
rebellion,  or  a  public  war?  Were  those  supporting  the  Confederate 
cause  to  be  treated  as  rebels  or  as  enemies?  In  a  civil  war,  is  a 
nation  restricted  by  the  rules  of  international  law  in  its  operations 
against  the  insurgent  power,  or  may  it  punish  these  insurgents  by 
municipal  regulations? 

But,  assuming  that  the  legal  character  of  the  Civil  War  had  been 
determined,  a  further  difficulty  remained.  There  was  commonly  a 
failure,  in  the  debates,  to  discriminate  between  a  general  confisca 
tion  of  property  within  the  jurisdiction  of  the  confiscating  govern 
ment,  and  the  treatment  accorded  by  victorious  armies  to  private 
property  found  within  the  limits  of  military  occupation.  Thus  the 
general  rule  exempting  private  property  on  land  from  the  sort  of 
capture  which  similar  property  must  suffer  at  sea,  was  erroneously 
appealed  to  as  an  inhibition  upon  the  right  of  judicial  confiscation.29 

20  Even  Dunning1,  in  his  Essays  on  the  Civil  War  and  Reconstruction,  though 
he  treats  directly  the  principles  of  international  law  involved  in  the  confiscation 
policy,  gives  no  place  to  this  distinction  between  military  seizure  and  judicial 
confiscation.  "In  the  modern  practice  of  civilized  nations",  he  says,  "the  gen 
eral  confiscation  of  enemies'  private  property  is  unknown.  It  is  as  obsolete  as 
the  poisoning  of  wells  in  an  enemy's  country.  As  a  rule,  real  estate  is  left  to 
its  owners,  and  movables  are  appropriated  only  so  far  as  military  necessity, 
as  judged  by  the  commander  in  the  field,  seems  to  demand  it".  Dunning  then 
continues  the  discussion,  still  with  reference  to  the  treatment  of  private  prop 
erty  by  military  officers,  and  for  authority  refers  to  the  passage  in  Halleck 
which  deals  not  with  confiscation  by  judicial  process  within  the  jurisdiction  of 
the  confiscating  state,  but  with  the  treatment  of  property  by  generals  in  mili 
tary  occupation  of  a  part  of  the  enemy's  country.  See  Dunning,  Essays  pp. 
31-32. 

(16) 


CONFISCATION   AS  A   BELLIGERENT  RIGHT  17 

That  a  military  capture  on  land  analogous  to  prize  at  sea  was  not 
regarded  as  a  legitimate  war  measure  was  so  obvious  and  well  recog 
nized  a  principle  that  it  would  hardly  require  a  continual  reaffirma- 
tion.  It  was  a  very  different  matter,  however,  so  far  as  the  law 
and  practice  of  nations  was  concerned,  for  a  belligerent  to  attack 
through  its  courts  whatever  enemy's  property  might  be  available 
within  its  limits.  Where  the  language  was  accurate,  it  was  this  form 
of  seizure  that  was  contemplated  whenever  confiscation  was  claimed 
as  a  belligerent  right.  In  this  connection  much  was  said  about  the 
relation  between  conqueror  and  vanquished,  which  was  also  beside 
the  point. 

When  after  the  war  the  question  of  confiscation  as  a  belligerent 
right  was  presented  to  the  Supreme  Court30  the  legal  precedents 
were  various  and  doubtful.31  Though  the  trend  of  modern  usage 
favored  the  milder  practice,  the  court,  without  arguing  the  points  of 
international  law  involved,  rested  the  justification  for  the  second 

"Miller  v.  U.  S.,  11  Wallace  268. 

"  Among  the  early  authorities  on  international  law  whose  opinion  would 
carry  weight  in  America,  Vattel  and  Puffendorf  favored  the  milder  practice, 
Burlamaqui  and  Rutherford  did  not  deal  directly  with  the  form  of  confiscation 
adopted  during  the  Civil  War,  while  Bynkershoeck  was  among  the  few  to  state 
in  its  bald  severity  the  extreme  right  of  the  belligerent  over  the  enemy's  prop 
erty.  Grotius,  the  pioneer  authority,  in  the  field  of  modern  international  law, 
allows  to  a  belligerent  very  extensive  rights  over  the  persons  and  property  of 
the  enemy.  In  his  closest  approach  to  the  subject  of  confiscation  as  understood 
in  the  Civil  War  he  admits,  though  without  any  indication  of  individual  approval, 
that  the  right  of  appropriation  applies  to  "enemy  goods  found  among  us  at 
the  outbreak  of  war".  We  may  class  Grotius,  then,  as  a  supporter  of  the 
belligerent  right  of  confiscation,  but  in  so  doing  we  must  bear  in  mind  that, 
in  large  part,  the  tone  of  his  work  is  that  of  a  reluctant  statement  of  unregen- 
erate  practice.  To  derive  clear  authority  for  confiscation  indeed  from  any  of 
these  early  writers  requires  a  rather  sympathetic  editing.  Vattel,  Law  of 
Nations  (Luke  White  ed.,  Dublin,  1792),  bk.  III.,  sec.  76;  Puffendorf,  Droit 
de  la  Nature  et  des  Gens,  liv.  VIII.,  ch.  v.,  sec.  xvii  ff. ;  Burlamaqui,  Principles 
of  Natural  and  Political  Science  (Nugent  transl.,  Boston,  1792),  pp.  375  ft.; 
Rutherford,  Institutes  of  Natural  Law  (second  Am.  ed.,  1832),  ch.  ix.,  passim; 
Bynkershoek,  Quaestiones  Juris  Publici  (1737),  lib.  L,  ch.  7,  p.  175;  Grotius, 
De  Jure  Belli  ac  Pads,  lib.  III.,  cap.  vi,  sec.  xiii.  In  the  case  of  Ware  v. 
Hylton,  3  Dallas  199,  argued  before  the  Supreme  Court  in  1796,  many  prom 
inent  American  jurists  of  the  time  expressed  opinions  upon  the  right  of  confis 
cation.  John  Marshall,  arguing  for  Virginia's  claim  to  certain  British  debts 
sequestered  during  the  Revolution,  declared  emphatically  for  the  general  right 
of  confiscation,  but  his  attitude  was  that  of  an  advocate  not  a  judge,  and  his 
interpretation  of  the  authorities  was  not  infallible.  Later,  as  Chief  Justice, 
Marshall  prepared  the  opinion  of  the  Supreme  Court  in  Brown  v.  U.  S.  (8 
Cranch  110),  a  case  involving  the  right  of  the  United  States  government  to 
seize  British  property  found  on  land  at  the  commencement  of  the  War  of  1812. 
Basing  his  sweeping  conclusion  upon  the  partial  citation  of  authorities  sub- 


18         THE   CONFISCATION    OF   PROPERTY   DURING   THE   CIVIL    WAR 

confiscation  act  upon  the  law  of  nations.  The  measure  was  sus 
tained  on  this  broad  basis  as  an  "undoubted  belligerent  right''  and 
was  construed  as  the  exercise  of  a  war  power,  not  as  a  municipal 
regulation.  It  is  to  be  observed  that  there  underlay  this  decision  a 
presumption  which  had  caused  much  controversy  and  honest  differ 
ence  of  opinion — a  presumption  which  was  not  rendered  less  con 
spicuous  by  the  omission  of  arguments  drawn  from  the  domain  of 
international  law.  The  question  was  a  fair  one  whether  the  right 
of  confiscation  could  be  clearly  claimed  on  the  basis  of  the  law  of 
nations,  and  this  was  a  point  of  much  larger  importance  and  greater 
difficulty  than  would  be  indicated  by  the  off-hand  assertion  of  the 
court  that  Congress  in  passing  the  second  confiscation  act  was  exer 
cising  "an  undoubted  belligerent  right".  It  has  been  an  accepted 
practice  in  our  courts  to  recognize  international  law  as  a  "part  of 
our  law",32  and  while  the  judicial  branch  of  the  government  would 
not  be  likely  to  invalidate  a  law  of  Congress  on  the  ground  that  it 
violated  the  rules  of  international  law,  it  usually  takes  care  to  con 
sider  these  rules  as  fully  as  possible,  and  even  to  interpret  the  intent 
of  Congress  in  the  light  of  such  rules.  Even  though  one  may  not 
deny  the  soundness  of  the  position  assumed  by  the  Supreme  Court, 
there  is  still  room  for  the  wish  that  so  important  a  subject  had  been 
handled  with  less  superficiality. 

mitted  by  the  counsel  for  the  appellant,  Marshall  wrote :  "It  may  be  con 
sidered  as  the  opinion  of  all  who  have  written  on  the  jus  belli,  that  war  gives 
the  light  to  confiscate,  but  does  not  itself  confiscate  the  property  of  the  enemy". 
A  special  act,  so  the  court  held,  was  necessary  to  authorize  such  seizures.  Story 
went  even  further  in  his  dissenting  opinion  and  maintained  that  the  right  of 
confiscation  vested  at  once  in  the  executive  on  the  outbreak  of  war,  without 
the  express  provision  of  any  statute.  When  one  seeks  the  authority  which 
these  men  quote,  however,  he  is  apt  to  find,  in  the  passage  cited,  a  treatment 
of  capture,  or  booty,  or  the  levy  of  contributions — topics  quite  distinct  from 
confiscation.  Story's  reference  to  Puffendorf  as  a  supporter  of  confiscation 
is  an  example  of  this  stretching  of  the  authorities.  (8  Cranch  143.)  Of  the 
later  writers,  Kent  favored  the  sterner  rule,  while  Wheaton  emphasized  the 
milder  practice  which,  however,  he  declared  to  be  "not  inflexible".  Kent 
(Comm.,  eleventh  ed.),  I.  66-67;  Wheaton,  International  Law  (Boyd  ed.),  pp. 
410,  413. 

"Hilton  v.  Guyot,  159  U.  S.  163;  Ware  v.  Hylton,  3  Dallas  281;  the  Paquette 
Habana,  175  U.  S.  700. 


IV.  THE  PROBLEM  OF  REBEL  STATUS 

WHEN  we  study  the  problem  of  rebel  status  in  relation  to  con 
fiscation  another  series  of  legal  tangles  emerges.  Though  the  ques 
tion  of  such  "status"  might  appear  chiefly  theoretical  and  involve 
much  abstract  reasoning,  yet  it  seemed  an  inevitable  requirement  of 
the  laws  of  intellect  that  men  who  discussed  confiscation  should 
have  in  mind  some  guiding  principle,  either  expressed  or  implied, 
as  to  the  legal  standing  of  persons  engaged  in  the  rebellion.  In  this 
connection,  therefore,  the  question  bore  directly  upon  the  larger 
legal  problems  which  the  Civil  War  called  forth.  Here  arose  the 
same  difficulty  which  presented  itself  in  connection  with  the  treat 
ment  of  Confederate  privateers,  the  blockading  of  southern  ports, 
and  the  non-intercourse  laws.33  In  a  different  phase  the  question 
again  forced  itself  upon  the  attention  of  the  government  after  the 
war  when  reconstruction  issues  were  pending  and  the  policy  of 
pardon  and  amnesty  was  urged  by  the  President  and  opposed  by  the 
radicals  of  Congress. 

At  first  sight  the  situation  would  seem  to  resolve  itself  into  a 
simple  alternative.  On  the  one  hand,  the  severity  of  the  law  of 
treason  could  be  invoked,  and  the  insurgents  could  be  held  liable  to 
treatment  as  criminals.  In  this  case  the  government  would  be  acting 
in  the  capacity  of  a  sovereign  punishing  its  rebellious  citizens  for 
their  violation  of  allegiance.  Or,  on  the  other  hand,  the  rebellion 
could  be  regarded  as  a  public  war,  and  all  the  privileges  and  ameni 
ties  prescribed  by  the  law  of  nations  for  the  treatment  of  belligerents 
could  be  accorded  to  the  Confederacy.  The  government,  in  taking 
this  attitude,  would  appear  to  be  laying  aside  its  sovereign  control 
over  the  South,  and  opposing  the  Confederate  states  only  as  a 
belligerent  would  oppose  his  enemy.  The  struggle  would  then  be  a 
clash  between  governments,  not  a  conflict  of  individuals  against 
their  government.  There  was,  however,  a  third  possibility  which 
would  be  most  likely  to  commend  itself  to  an  administration  guided 
by  a  spirit  of  expediency  or  practical  opportunism  rather  than  of 
rigid  adherence  to  consistent  principles.  Instead  of  selecting  one  or 

"  The  well-known  work  of  Professor  Dunning,  Essays  on  the  Civil  War  and 
Reconstruction,  contains  the  best  general  discussion  of  these  legal  problems 
which  the  writer  has  found. 

(19) 


20        THE  CONFISCATION   OF  PROPERTY  DURING  THE  CIVIL   WAR 

the  other  of  the  two  alternatives  as  an  exclusive  rule  of  conduct,  the 
government  could  suit  the  rule  to  the  occasion,  and  adopt  whichever 
course  might  appear  most  suitable  in  a  given  situation.  The  theory 
of  traitor  status  was,  in  the  opinion  of  many,  a  convenient  justifica 
tion  for  certain  severe  measures  which  were  more  or  less  directly 
contemplated  and  which  could  rest  on  no  other  accepted  principle, 
as  for  instance  the  condemnation  after  the  war  of  the  principal 
Confederate  leaders  under  domestic  criminal  law.  It  became  appar 
ent  at  once,  however,  that  this  severe  principle  could  not  be  adhered 
to  rigidly.  In  the  ordinary  conduct  of  the  war  it  was  the  jus  belli, 
not  the  lex  talionis  which  must  govern  the  armies.  In  the  declara 
tion  of  blockade  and  in  the  treatment  of  privateers  as  public  enemies 
instead  of  pirates,  the  administration  followed  the  only  rational  and 
humane  course  possible,  but  in  these  particulars  the  insurgents  were 
undoubtedly  recognized  as  belligerents. 

So  far  the  way  seemed  clearly  marked  out  by  the  plain  dictates 
of  reason  and  humanity,  and  there  was  no  serious  difference  of 
opinion.  When  the  question  of  confiscation  was  reached,  however, 
there  was  no  generally  conceded  principle  around  which  all  could 
unite,  and  it  was  in  this  connection  that  the  difficulty  regarding  rebel 
status  reached  its  most  acute  stage.  The  subject  was  beclouded 
rather  than  clarified  by  the  debates.  On  the  one  hand  the  rebels 
were  referred  to  as  red-handed,  black-hearted  pirates,  and  traitors,34 
unworthy  of  claiming  a  single  belligerent  right.  On  the  other  hand 
they  were  represented  as  a  regularly  constituted  governmental  power 
with  an  organized  administration  in  control,  an  authorized  army  in 
the  field,  and  with  all  the  attributes  of  a  belligerent  in  a  public  war.35 

It  remained  for  the  Supreme  Court,  in  a  few  clear-cut  decisions, 
to  present  what  seems  the  only  practical  solution  of  the  problem,  by 
adopting  the  convenient  and  flexible  principle  of  the  double  status 
of  the  rebels.  In  the  Amy  Warwick  case  Justice  Sprague  thus  ex- 

S4  See  speeches  of  Elliot  of  Massachusetts  in  the  House  of  Representatives 
(Cong.  Globe,  37  Cong.,  2  sess.,  p.  2234),  Howard  of  Michigan  (ibid.,  p.  1717), 
and  Davis  of  Kentucky  (ibid,.,  p.  1759). 

85  The  words  of  Blair  of  Pennsylvania,  who  favored  confiscation,  present  a 
good  statement  of  the  principle  of  belligerent  status :  "What  are  our  relations  to 
these  rebellious  people?  They  are  at  war  with  us,  having  an  organized  govern 
ment  in  the  cabinet,  and  an  organized  army  in  the  field,  and  I  hold  that  in  the 
conduct  and  management  of  the  war  on  our  part  we  are  compelled  to  act 
towards  them  as  if  they  were  a  foreign  Government  of  a  thousand  years' 
existence,  between  whom  and  us  hostilities  have  broken  out".  Cong.  Globe,  37 
Cong.,  2  sess.,  p.  2299. 


THE    PROBLEM    OF   REBEL   STATUS  21 

pressed  the  views  of  the  majority  of  the  court:  "I  am  satisfied  that 
the  United  States  as  a  nation  have  full  and  complete  belligerent 
rights,  which  are  in  no  degree  impaired  by  the  fact  that  their  enemies 
owe  allegiance  and  have  superadded  the  guilt  of  treason  to  that 
of  unjust  war".36  A  similar  expression  is  that  of  Justice  Grier  in 
the  Prize  Cases :  "The  law  of  nations  .  .  .  contains  no  such  anoma 
lous  doctrine  as  that  which  this  court  are  now  for  the  first  time 
desired  to  pronounce,  to  wit :  That  insurgents  who  have  risen  in 
rebellion  against  their  sovereign,  expelled  her  courts,  established  a 
revolutionary  government,  organized  armies,  and  commenced  hos 
tilities,  are  not  enemies  because  they  are  traitors;  and  a  war  levied 
on  the  government  by  traitors,  in  order  to  dismember  and  destroy 
it,  is  not  a  «/ar  because  it  is  an  'insurrection'"31  Again,  in  Miller  v. 
United  States :  "Whatever  may  be  true  in  regard  to  a  rebellion 
that  does  not  rise  to  the  magnitude  of  a  war,  it  must  be  that  when 
it  has  become  a  recognized  war  those  who  are  engaged  in  it  are  to 
be  regarded  as  enemies."38 

With  this  statement  of  the  broad  theoretical  problem  in  mind 
we  may  now  turn  to  a  detailed  phase  of  the  question  of  rebel  status 
in  which  its  practical  application  and  its  bearing  upon  individual 
rights  r-tan.l  out  clearly.  One  of  the  coalmen  difficr.lties  confronting 
the  courts  in  the  enforcement  of  the  confiscation  acts  was  to  decide 
whether,  in  the  seizure  of  property  of  persons  adhering  to  the  rebel 
lion,  opportunity  should  be  given  to  the  supposed  "rebel"  to  appear  I 
in  court  and  plead  his  case.  On  the  one  hand  stood  the  principle 
that  an  enemy  has  no  standing  in  court,  while  on  the  other  hand  the 
very  nature  of  the  proceeding  under  the  confiscation  acts  was  such 
that  judgment  must  rest  upon  a  determination  of  the  fact  as  to 
whether  or  not  the  party  was  actually  engaged  in  the  rebellion — a 
point  on  which  the  owner  could  claim  a  right  to  be  heard.  More 
over  it  was  ably  contended  that  a  quasi-criminal  character39  per- 

M2  Sprague  123. 

17  2  Black  670.  See  also  pp.  672  and  673.  As  to  the  necessity  of  some 
concession  of  belligerent  rights  in  the  case  of  a  formidable  rebellion,  see  Will- 
Hams  r.  Bruffy,  96  U.  S.  187.  There  the  Supreme  Court  declared  that  such  con 
cessions  depend  upon  "the  considerations  of  justice,  humanity,  and  policy  con 
trolling  the  government". 

*»11  Wallace  309. 

19  The  Supreme  Court  is  authority  for  the  statement  that  actions  in  confisca 
tion  were  "in  no  sense  criminal  proceedings",  and  were  "not  governed  by  the 
rules  that  prevail  in  respect  to  indictments  or  criminal  informations".  The  only 


22        THE  CONFISCATION   OF  PROPERTY  DURING   THE  CIVIL   WAR 

tained  to  confiscation  proceedings,  requiring  the  same  strict  con 
struction  of  the  law  in  the  interest  of  the  accused  as  belongs  to 
actions  brought  under  a  criminal  indictment  Such  construction 
would  certainly  not  deny  to  the  suspected  "rebel"  all  opportunity 
whatever  of  conducting  a  defense  in  court. 

The  practice  during  the  war  on  this  point  was  uncertain  and 
frequently  detrimental  to  the  interests  of  the  accused.  In  the  dis 
trict  court  for  the  eastern  district  of  Virginia  a  general  rule  was 
prescribed  which  disallowed  a  hearing  in  the  case  of  persons  adher 
ing  to  the  rebellion.40  In  a  case  tried  before  Judge  Betts  of  the 
southern  district  of  New  York  in  July,  1863,  the  defendant,  a  resi 
dent  of  Alabama,41  duly  filed  an  answer  to  the  allegations  set  forth 
in  the  libel  of  information  against  his  property,  but  the  judge 
ordered  this  answer  to  be  stricken  from  the  files  on  the  ground  that 
the  defendant  was  an  "alien  enemy",  and  hence  had  no  persona 
standi  in  a  court  of  the  United  States.42  An  able  criticism  of  Judge 
Betts's  position  is  to  be  found  in  the  Annual  Cyclopedia  for  1863. 
The  writer  points  out  that  if  Betts's  doctrine  was  correct  "the  mere 
fact  of  Mr.  Wiley's  [the  defendant's]  residence  in  a  southern  insur 
rectionary  state  precludes  him  from  appearing  and  contesting  the 
allegations  of  the  libel  that  he  has  rendered  active  aid  to  the  rebel 
lion.  .  .  .  Under  such  a  practice  every  dollar  of  property  owned  by 
Southern  citizens  in  the  North,  no  matter  how  loyal,  need  only  be 
seized  under  an  allegation  of  disloyal  practices,  and  as  the  accused 
cannot  be  heard  to  deny  that  allegation  (and  if  he  remains  silent 
no  proof  of  it  is  required),  the  whole  matter  is  very  summarily  dis 
posed  of  to  the  great  comfort  and  advantage  of  the  informer,  and 
to  the  increment  of  his  personal  possessions." 

This  question  whether  a  rebel  should  have  a  hearing  in  a  federal 
court  on  the  issue  of  the  condemnation  of  his  property  waited  till 
after  the  war  for  its  settlement  by  the  Supreme  Court.  The  case 

subject  of  inquiry  in  such  cases,  in  the  opinion  of  the  court,  was  the  liability  of 
the  property  to  confiscation,  and  persons  were  referred  to  only  to  identify  the 
property.  (The  Confiscation  Cases,  20  Wallace  104-105.  In  this  case  there  were 
three  dissenting  judgrs. )  For  a  vigorous  statement  of  the  view  that  the  con 
fiscations  partook  largely  of  the  nature  of  criminal  statutes,  see  Field's  dissent 
ing  opinion  in  Tyler  v.  Defrees,  11  Wallace  331,  and  Lincoln's  proposed  veto 
message,  Senate  Journal,  37  Cong.,  2  sess.,  July  17,  1862,  p.  873. 

40  Semple  v.  U.  S.,  21  Fed.  Cas.  1072. 

41  Annual   Cycl.,   1863,    p.    220. 

<2  Jecker  v.  Montgomery,   18   Howard  112,  and  cases  cited. 


THE    PROBLEM    OF   REBEL   STATUS  23 

was  that  of  McVeigh  v.  U.  S. — one  of  the  prominent  confiscation 
cases.43  In  its  facts  the  case  resembled  that  in  which  Judge  Betts 
had  given  his  radical  decision.  A  libel  of  information  had  been 
filed  in  the  eastern  Virginia  district  to  reach  certain  real  and  per 
sonal  property  of  McVeigh  who  was  charged  with  having  engaged 
in  armed  rebellion.  McVeigh  appeared  by  counsel,  interposed  a 
claim  to  the  property,  and  filed  an  answer  to  the  information.  By 
motion  of  the  district  attorney,  however,  the  appearance,  answer, 
and  claim  were  stricken  from  the  files  for  the  reason  that  the  re 
spondent  was  a  "resident  of  the  city  of  Richmond,  within  the  Con 
federate  lines,  and  a  rebel".  The  property  was  condemned  and 
ordered  to  be  sold.  When  the  case  reached  the  Supreme  Court  the 
judgment  was  reversed,  and  the  action  of  the  district  attorney 
unanimously  condemned.  The  court  held  that  McVeigh's  alleged 
criminality  lay  at  the  foundation  of  the  proceeding,  and  that  the 
questions  of  his  guilt  and  ownership  were  therefore  fundamental 
in  the  case.  The  order  to  strike  the  claim  and  answer  from  the  files 
on  the  ground  that  McVeigh  was  a  "rebel"  amounted  to  a  pre- 
judgment  of  the  very  point  in  question  without  a  hearing.  The 
court  below  in  issuing  this  order  had  acted  on  the  theory  that  no 
enemy  of  the  United  States  could  have  standing  in  its  courts,  but  the 
higher  tribunal  refused  to  allow  such  an  application  of  this  prin 
ciple.  On  this  fundamental  question,  therefore,  the  Supreme  Court 
was  committed  to  the  proposition  that  a  "rebel"  should  not  be 
denied  the  right  to  a  hearing  in  connection  with  the  seizure  of  his 
property  by  a  federal  court.  Had  this  conclusion  been  pronounced 
early  enough  to  produce  uniformity  of  practice  during  the  war,  and 
had  the  Supreme  Court  itself  maintained  this  principle  consistently, 
the  advantage  of  the  McVeigh  decision  would  have  been  far  greater 
than  was  actually  the  case. 

"11  Wallace  259;  see  also  Windsor  v.  McVeigh,  93  U.   S.   274. 


V.  THE  DURATION  OF  THE  FORFEITURE 

WE  consider  under  this  caption  the  legal  controversy  as  to 
whether  judgments  against  the  property  of  "rebels"  should  involve 
the  surrender  of  the  full  title  in  fee  simple,  or  only  a  life  interest. 
In  spite  of  the  fact  that  Congress  took  special  pains  to  be  explicit 
on  this  point,  even  to  the  extent  of  passing  a  joint  resolution  ex 
planatory  of  the  original  statute,44  it  seems  to  have  been  variously 
interpreted.  Judge  Underwood  of  Virginia,  in  the  Hugh  Latham 
case,  argued  for  the  absolute  forfeiture  of  real  estate  as  in  keeping 
with  the  intention  of  the  constitution  and  the  statute.  Congress  did 
not  mean,  declared  the  judge,  that  the  "traitor"  should  merely  sur 
render  a  life  merest,  but  only  that  the  forfeiture  must  be  perfected 
during  his  life.  As  for  the  joint  resolution,  he  interpreted  it  as 
merely  intended  to  keep  the  legislation  within  the  constitutional 
rights  of  Congress  which  permit  no  attainder  of  treason  that  shall 
"work  corruption  of  blood  or  forfeiture  except  during  the  life  of 
the  person  attainted".45  The  words  "except  during"  were  held  to 
apply  to  the  specific  legal  act  by  which  the  forfeiture  was  accom 
plished,  rather  than  to  its  duration. 

When,  however,  this  important  question  was  presented  to  the 
Supreme  Court  in  1869,  the  reasoning  of  Judge  Underwood  was  set 
aside,  and  the  duration  of  the  forfeiture  was  held  to  terminate  with 
the  life  of  the  offender.  One  Douglas  Forrest  had  brought  suit  in 
a  Virginia  court  to  recover  the  forfeited  estate  of  his  father  French 
Forrest,  who  had  been  a  Confederate  naval  officer,  and  the  case  was 
appealed  to  the  Supreme  Court.46  The  original  confiscation  had 
taken  place  in  1863,  and  no  question  was  raised  as  to  the  regularity 
of  the  confiscation  decree,  or  the  validity  of  the  marshal's  sale 
under  it.  Forrest  maintained,  however,  that  only  a  life  interest  had 
been  conveyed  by  this  sale,  while  the  plaintiff,  Bigelow,  claimed  a 
right  in  fee  simple  to  the  property.  The  court  decided  that  the  act 
of  1862  and  the  accompanying  explanatory  resolution  are  to  be 
taken  together,  and  that  they  "admit  of  no  doubt  that  all  which 
could  under  the  law  become  the  property  of  the  United  States,  or 

44  Supra,  p.   12. 

45  McPherson,   Hist,  of  the  Rebellion,  p.   206. 
4(1  Bigelow  v.  Forrest,  9  Wallace  339. 

(24) 


THE  DURATION   OF  THE   FORFEITURE  25 

could  be  sold  by  virtue  of  a  decree  of  condemnation  and  order  of 
sale,  was  a  right  to  the  property  seized  terminating  with  the  life  of 
the  person  for  whose  act  it  had  been  seized".  No  title  could  there 
fore  be  conferred,  which  would  outlast  the  life  of  the  original 
offender.47 

As  to  forfeitures  under  the  act  of  1861,  their  effect  was  held 
to  be  absolute,  permitting  no  recovery  of  the  property  by  the  owner's 
heirs.  The  reasoning  of  the  Supreme  Court  in  this  connection  em 
phasizes  the  difference  in  the  nature  of  the  two  acts.48  Whereas 
proceedings  under  the  act  of  1862  were  directed  against  the  owner, 
because  of  his  quasi-criminal  character,  the  proceedings  under  the 
act  of  1861  were  directed  merely  against  the  property.  Nothing 
was  said  about  treason ;  therefore  the  principles  of  attainder  would 
not  apply.  Condemnations  under  this  act  were  based  upon  the 
hostile  use  of  the  property,  and  were  regarded  as  analogous  to  the 
condemnation  of  goods  for  smuggling  or  for  violation  of  non- 
intercourse  regulations,  and  this  interpretation  required  that  the 
whole  title  be  surrendered. 

"See  also,   on  the  duration  of  the   forfeiture,   Day  v.   Micou,    18    Wall.    156; 
U.  S.  v.  Clarke,  20  Wall.  92  ;  Waples  v.  Hays,  108  U.  S.   6. 
"Kirk  v.  Lynd.   106  U.   S.   315. 


VI.     REVERSIONARY  RIGHTS  IN  CONFISCATED 
PROPERTY 

THE  points  just  noted  regarding  the  duration  of  the  forfeiture 
are  intimately  connected  with  the  difficult  problem  of  the  rever 
sionary  right  in  confiscated  property.  A  deed  to  the  life  estate  in  a 
piece  of  realty  secured  at  a  confiscation  sale  does  not  carry  a  title  in 
fee  to  the  property,  since  the  heirs  of  the  "rebel"  owner  have  a 
future  interest  which  takes  effect  upon  his  death.  Such  a  situation 
affords  an  excellent  example  of  a  "reversion",  which  has  been  defined 
as  "the  estate  left  in  a  party  after  he  has  conveyed  away  less  than 
a  fee".49  This  naturally  involves  a  "reversionary  tenant",  /.  e.,  a 
holder  of  the  future  rights  which  revert  when  the  user's  interest 
terminates.  It  is  well  understood  in  realty  law  that  such  a  rever 
sionary  right  in  property  is  marketable,  and  may  be  transferred.50 
The  question  arose  frequently  whether,  after  confiscation  proceed 
ings  had  been  completed,  the  dispossessed  "rebel"  could  still  consider 
himself  as  the  holder  and  possible  conveyer  of  that  remaining  share 
in  the  estate  which  subsisted  after  the  life  interest  had  been  trans 
ferred.  It  is  clear  that  if  he  could  convey  this  expectant  right  the 
penalty  of  his  forfeiture  would  be  much  less  severe.  We  may  now 
turn  to  some  of  the  judicial  pronouncements  dealing  with  this 
problem. 

In  the  case  of  Wallach  r.  Van  Riswick,  appealed  to  the  Supreme 
Court  in  1875,  the  question  was  presented  whether  the  former 
owner  of  a  confiscated  estate  could  transfer  by  deed  the  suspended 
fee  to  the  property.51  The  court  expressed  the  opinion  that  Con 
gress  had  passed  the  second  confiscation  act  with  the  purpose  of 
completely  dispossessing  the  owner  of  all  benefits  in  the  property 
seized,  and  had  not  intended  to  permit  him  to  retain  any  right  of 
conveyance  whatever;  that  the  forfeiture  while  it  lasted  was  com 
plete, — "a  devolution  upon  the  United  States  of  the  owner's  entire 
right" ;  and  that  the  provision  regarding  the  duration  of  the  for- 

49  American  Law  and  Procedure  (pub.  by  Lasalle  Extension  University,  Chi 
cago),  V.  92.  See  also  Kale,  Future  Interests,  sees.  68;  121  foil. 

60  Burton  v.  Smith,  13  Peters  480  ;  Hempstead  v.  Dickson,  20  111.  193  ;  Will 
iams  on  Real  Property,  p.  256. 

81  92  U.  S.  202. 

(26) 


REVERSIONARY  RIGHTS  IN  CONFISCATED  PROPERTY       27 

feiture  was  introduced  for  the  advantage  of  the  children  and  heirs 
alone,  not  as  a  "benefit  to  the  traitor  by  leaving  in  him  a  vested 
interest  in  the  subject  of  the  forfeiture".  While  evading  the 
theoretical  question  as  to  where  the  suspended  fee  resided  during 
the  life  of  the  "traitor"'  the  court  nevertheless  declared  that  it  could 
not  dwell  in  the  offender,  since  Congress  did  not  intend  that  he 
should  be  the  tenant  of  the  reversion.  On  the  basis  of  such  argu 
ments  the  court  ruled  that  the  offender  had  no  power  to  dispose  of 
the  future  title  to  his  property. 

It  would  be  hard  to  find  a  more  categorical  and  positive  dec 
laration  of  law  than  the  Wallach  decision,  and  yet  in  the  course 
of  a  few  years  the  Supreme  Court  gradually  retreated  from  its 
position  as  there  stated,  until  it  had  virtually  reversed  its  opinion. 
We  find  various  decisions  in  which  it  was  maintained  that  after  the 
death  of  the  offender,  his  heirs  secure  the  property  by  inheritance, 
and  not  by  grant  from  the  government.  This  would  tend  to  place 
the  suspended  fee  in  the  offender  and  make  him  the  tenant  in  rever 
sion.52  In  the  case  of  the  Illinois  Central  Railroad  v.  Bosworth,53  the 
court  argued  that  after  confiscation  the  fee  remained  in  abeyance, 
and  then,  adopting  a  figure  of  shadowy  personification,  declared : 
"It  is  not  necessary  to  be  overcurious  about  the  intermediate  state 
in  which  the  disembodied  shade  of  naked  ownership  may  have  wan 
dered  during  the  period  of  its  ambiguous  existence.  It  is  enough 
to  know  that  it  was  neither  annihilated  nor  confiscated,  nor  appro 
priated  to  any  third  party".  The  court  then  argued  that  the  "naked 
fee"  subject  to  the  usufruct  of  the  purchaser  under  confiscation 
proceedings,  remained  in  the  offender  himself,  though  without  any 
power  on  his  part  to  dispose  of  it.  The  next  step  was  to  maintain 
that  by  reason  of  special  pardon  or  general  amnesty  after  the  war, 
the  disability  to  dispose  of  the  permanent  title  was  removed. 

Finally,  in  connection  with  an  Ohio  case  in  1892,  came  the 
practical  reversal  of  the  Wallach  decision.54  The  property  of  one 
Jenkins  had  been  confiscated  in  1863  and  purchased  by  one  Collard. 
In  1865  Jenkins  transferred  to  Collard  all  his  interest  and  estate 
in  the  property  for  a  consideration  of  $18,000  accompanying  the 

"Avegne  v.  Schmidt,   113  U.  S.   293;  Shields  v.  Schiff,   124  U.  S.  351. 
"133   U.   S.    92. 
"145   U.   S.   552. 


28        THE  CONFISCATION   OF  PROPERTY  DURING  THE  CIVIL   WAR 

transaction  with  a  covenant  of  general  warranty55  binding  himself 
and  his  heirs.  The  court  was  called  upon  to  settle  whether  the  title 
thus  conveyed  was  valid  against  the  Jenkins  heirs,  or  in  other  words 
whether  Jenkins  could  dispose  of  these  reversionary  rights.  The 
court  summarized  the  earlier  decisions  and  criticized  at  some  length 
the  opinion  in  the  Wallach  case.  The  ground  of  the  criticism  was 
that  the  ruling  imposing  on  the  offender  the  disability  to  transfer 
the  reversionary  rights  was  based  not  upon  any  express  provision 
of  the  statute,  but  upon  what  the  court  thought  the  policy  of  con 
fiscation  to  involve — in  other  words,  it  was  a  piece  of  "court-made 
law".  Then,  applying  the  law  to  the  Jenkins  case  in  the  light  of  its 
later  judgment,  the  Supreme  Court  ruled  that  the  offender,  by  his 
covenant  of  warranty,  could  convey  a  permanent  future  assurance 
of  title  which  would  hold  good  against  all  the  claims  of  his  heirs. 

In  effect  this  was  of  course  a  reversal  of  the  rule  set  up  in  the 
Wallach  case.56  A  study  of  the  steps  taken  in  this  whole  series  of 
legal  changes  seems  to  reveal  an  increasing  tendency  toward  a  more 
liberal  interpretation  of  harsh  statutes,  while  it  suggests  at  the 
same  time  the  difficulty  of  consistently  applying  the  confiscation  acts 
in  the  details  of  individual  cases. 

65  By  issuing1  a  "covenant  of  warranty"  the  grantor  assures  the  grantee  that 
he  shall  not  at  any  future  time  be  evicted  by  paramount  title.  Bouvier,  Law 
Dictionary. 

58  If  any  mistake  or  fault  can  be  attributed  to  the  court,  it  probably  con 
sisted  in  taking  an  unnecessarily  extreme  position  in  the  Wallach  case.  The 
point  in  dispute  could  have  been  satisfied  by  merely  ruling  that  at  the  time 
of  the  transaction  in  question  Wallach  was  disabled  from  conveying  the  fee, 
and  such  a  position  would  have  been  consistent  with  the  later  rulings.  (For  a 
summary  of  all  the  decisions  relating  to  this  subject,  see  U.  S.  v.  Dunnington, 
146  U.  S.  338.) 


VII.     THE  CONSTITUTIONALITY  OF  THE  CONFIS 
CATION  ACTS 

A  PROBLEM  more  fundamental  perhaps  than  any  of  the  above 
was  that  which  concerned  the  constitutionality  of  the  confiscation 
acts.  It  was  not  surprising  that  this  legislation  which  had  been 
enacted  against  the  judgment  of  many  of  the  ablest  thinkers  in  Con 
gress,  which  had  barely  escaped  the  presidential  veto,  and  which  had 
occasioned  the  greatest  uncertainty  in  its  judicial  enforcement, 
should  have  to  meet  sooner  or  later  that  peculiar  ordeal  to  which 
all  American  laws  are  liable — the  test  of  constitutionality.  The 
wonder  is  that  the  test  was  deferred  so  long,  for  it  was  not  until 
1871  that  the  matter  of  constitutionality  was  made  a  direct  issue 
before  the  Supreme  Court.  The  case  was  that  of  Miller  v.  United 
States— a  proceeding  under  both  of  the  confiscation  acts  to  forfeit 
certain  shares  of  railroad  stock  in  two  Michigan  corporations.57 
The  information  filed  against  this  stock  alleged  it  to  be  the  property 
of  Samuel  Miller,  a  Virginia  "rebel".  An  essential  feature  of  the 
case  was  the  fact  that  Miller  had  disregarded  the  notice  and  the 
district  court  in  Michigan,  without  a  hearing  of  the  case,  had  entered 
a  decree  of  condemnation  by  default.  Miller's  attorney  complained 
that  the  acts  of  Congress  on  which  the  seizure  and  the  condemnation 
by  default  had  been  based  were  unconstitutional,  involving  a  viola 
tion  of  the  fifth  and  sixth  amendments,  which  have  to  do  with  the 
guarantees  of  due  process  of  law  and  of  property  rights. 

The  court  met  the  defendant's  objections  by  a  liberal  reliance  on 
the  "war  power"  and  by  reference  to  earlier  decisions  in  which 
related  problems  had  been  settled.  The  primary  question  of  the 
nature  of  the  Civil  War  had  been  fully  treated  in  the  Prize  Cases,58 
where  the  court  had  defined  the  conflict  as  one  of  sufficient  magni 
tude  to  give  the  United  States  all  the  rights  and  powers  appropriate 
to  a  foreign  or  national  war.  The  belligerent  rights  of  the  United 
States,  then,  were  not  diminished  by  the  fact  that  the  conflict  was 
a  civil  war.  In  the  same  decisions  the  relation  of  the  Union  govern 
ment  to  the  insurrectionary  districts  was  dealt  with,  and  the  rights 
both  of  a  sovereign  and  a  belligerent  were  held  to  belong  to  the 

"  11    Wallace   304    ft. 
"  2  Black  673. 

(29) 


30        THE   CONFISCATION   OF   PROPERTY   DURING   THE   CIVIL   WAR 

government  of  the  United  States.  The  court  proceeded  on  the 
basis  of  these  previous  decisions  to  analyze  the  confiscation  acts  and 
defend  their  constitutionality.  The  most  important  problems  before 
the  court  under  the  head  of  constitutionality  were:  first,  to  decide 
under  what  category  to  place  confiscation,  i.  c.,  whether  to  regard 
it  as  the  exercise  of  war  power  or  as  a  municipal  regulation;  and 
second,  to  deal  with  the  objection  that  the  act  violated  the  fifth  and 
sixth  amendments  relating  to  rights  of  property  and  of  impartial 
trial.  As  to  the  first  of  these  problems  the  court  laid  down  the 
doctrine  that  the  confiscation  acts  were  not  passed  as  a  municipal 
regulation  but  as  a  war  measure.  With  a  tone  of  certainty  which, 
as  we  have  seen,  the  precedents  hardly  warranted,  the  court  declared 
that  "this  is  and  always  has  been  an  undoubted  belligerent  right". 
Congress  had  "full  power  to  provide  for  the  seizure  and  confisca 
tion  of  any  property  which  the  enemy  or  adherents  of  the  enemy 
could  use  for  the  purpose  of  maintaining  the  war  against  the  gov 
ernment".  The  act  of  1861,  and  the  fifth,  sixth,  and  seventh  sec 
tions  of  the  act  of  1862,  were  therefore  construed  as  an  enforcement 
of  the  belligerent  rights  which  Congress  amply  possessed  during  the 
Civil  War. 

Having  thus  placed  the  confiscation  acts  within  the  category  of 
war  measures,  the  court  found  little  difficulty  in  meeting  the  objec 
tion  that  the  acts  involved  a  violation  of  the  fifth  and  sixth  amend 
ments.  The  relevant  provisions  in  these  amendments  are  that  no 
person  shall  be  deprived  of  his  property  without  due  process  of  law, 
and  that  in  all  criminal  prosecutions  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial  by  an  impartial  jury  of  the  state 
and  district  wherein  the  crime  shall  have  been  committed.  The 
acts,  as  we  have  above  noted,  permitted  judgment  on  default  with 
out  a  jury  trial,  without  a  personal  hearing,  and  without  a  deter 
mination  of  the  facts  as  to  the  guilt  of  the  owner.  It  was  admitted 
by  the  court  that  if  the  purpose  of  the  acts  had  been  to  punish 
offenses  against  the  sovereignty  of  the  United  States,  i.  e.,  if  they 
had  been  criminal  statutes  enacted  under  the  municipal  power  of 
Congress,  there  would  have  been  force  in  the  objection  that  Con 
gress  had  disregarded  its  constitutional  restrictions.  Since,  how 
ever,  the  acts  were  passed  in  exercise  of  the  war  powers  of  the  gov 
ernment,  they  were  held  to  be  unaffected  by  the  limitations  fixed 
by  the  fifth  and  sixth  amendments. 


THE    CONSTI1  LTIOXALITY    OF    THE    CONFISCATION'    ACTS  31 

Three  of  the  judges,  Field,  Clifford,  and  Davis,  dissented  from 
this  opinion.  Their  grounds  of  disagreement  were  that  the  forfeit 
ures  in  question  were  punitive  in  their  nature,  being  based  on  the 
municipal  not  the  war  power  of  Congress,  that  condemnations 
must  depend  on  the  personal  guilt  of  the  owner,  that  judgments 
against  the  property  should  only  result  from  proceedings  in  rent  to 
ascertain  the  guilt  or  innocence  of  the  supposed  offender,  and  that 
therefore  a  judgment  based  on  mere  default  in  such  cases  would 
amount  to  a  denial  of  "due  process  of  law".  These  words  of  the 
dissenting  judges  not  only  agree  exactly  with  one  of  the  important 
points  in  Lincoln's  objections,  but  they  harmonize  very  well  with 
the  position  of  the  Supreme  Court  itself  when  dealing  with  the 
problem  whether  a  "rebel"  should  have  a  hearing.  We  noticed  in 
connection  with  the  McVeigh  case  that  the  court  insisted  upon  the 
necessity  of  a  hearing  to  determine  the  question  of  the  owner's 
alleged  rebellion.  The  dissenting  judges  in  the  Miller  case  were 
merely  applying  this  same  principle  to  the  case  of  default.  It  was 
not  even  necessary,  said  the  majority  of  the  court,  to  conduct  an 
ex  partc  hearing  after  the  default.  The  entry  of  the  default  in  due 
form  was  to  be  regarded  as  establishing  all  the  facts  averred  in  the 
information,  as  in  the  case  of  confession,  or  of  actual  conviction  on 
evidence.  It  was  this  principle  which,  according  to  the  minority 
view,  would  involve  serious  judicial  usurpation,  and  "work  a  com 
plete  revolution  in  our  criminal  jurisprudence".  To  the  thoughtful 
student  this  view  of  the  minority  judges  seems  but  a  natural  protest 
against  an  extreme  and  unjust  claim.  The  dissenting  position 
appears  still  stronger  when  it  is  remembered  that  the  majority  judges 
admitted  the  incompetency  of  Congress  to  allow  such  judgments 
as  the  confiscation  acts  permitted  on  the  basis  of  municipal  law, 
and  that  the  "war  power"  theory  was  the  convenient  door  of  escape 
from  this  constitutional  difficulty. 

The  above  survey  of  legal  problems  may  perhaps  be  sufficient  to 
suggest  the  difficulty  and  uncertainty  with  which  the  courts  labored 
in  executing  these  measures  of  confiscation.  It  is  often  the  case 
with  mooted  points  of  law  that  the  period  of  the  greatest  diversity 
of  opinion  is  alsa  the  period  when  the  number  of  cases  involved  is 
greatest,  and  when  therefore  the  pressure  upon  the  judicial  authori 
ties  is  heaviest.  In  the  case  of  these  legal  difficulties  regarding 


32         THE   CONFISCATION   OF   PROPERTY   DURING   THE   CIVIL   WAR 

confiscation  their  final  settlement  did  not  occur  until  after  the  war; 
in  some  cases  so  long  afterward  that  the  issue  was  practically  dead, 
and  little  benefit  could  be  secured  from  the  decisions  as  guides  to 
the  lower  tribunals.  When  during  the  war  we  find  doubt  on  such 
fundamental  points  as  the  constitutionality  of  the  law  itself,  and 
the  question  as  to  whether  a  rebel  could  be  heard  in  his  own  defense, 
we  need  no  longer  wonder  that  judicial  action  in  these  cases  was  so 
often  unsatisfactory.  When  in  addition  to  this  we  remember  that 
during  the  war  both  Congress  and  the  courts  did  their  work  under 
heavy  pressure,  and  sometimes  in  haste  and  confusion,  we  can 
better  understand  such  mistakes  and  shortcomings  as  appear  in 
connection  with  the  execution  of  the  confiscation  policy.  To  carry 
out  a  war  measure  by  peaceful  process  is  a  rather  anomalous  under 
taking,  yet  this  is  what  the  strict  judicial  enforcement  of  the  con 
fiscation  policy  amounted  to.  We  must  remember,  too,  that  these 
measures  were  exceptional,  that  they  could  be  justified  only  on 
extreme  grounds,  and  that  they  touched  human  nature  in  a  very 
weak  place. 


VIII.     FORFEITURES  UNDER  THE  DIRECT  TAX  LEVY 

As  closely  related  to  the  general  subject  of  judicial  forfeiture 
we  may  include  within  our  study  a  form  of  seizure  which  prac 
tically  amounted  to  confiscation,  though  carried  out  under  legal 
forms  quite  different  from  those  of  the  confiscation  acts.  We  refer 
to  seizures  based  upon  an  act  of  June  7,  1862,59  "for  the  collection 
of  direct  taxes  in  insurrectionary  districts  within  the  United  States". 
An  earlier  statute,  that  of  August  5,  1861,60  providing  for  a  direct 
tax  to  secure  war  revenue,  had  apportioned  quotas  to  all  the  states, 
including  those  in  insurrection.  It  was  now  enacted  that  in  those 
states  or  districts  where  this  act  could  not  be  peaceably  executed, 
special  tax  commissioners  should  be  appointed  by  the  President 
who,  as  soon  as  the  military  authority  of  the  United  States  could 
be  established,  should  make  assessments  "upon  all  the  lands  and 
lots  of  ground"  situated  in  the  insurrectionary  territory.  This 
assessment  was  to  be  based  upon  the  real  estate  valuation  in  force 
in  1861.  A  penalty  of  fifty  percent  of  the  tax  proper  was  made 
an  additional  charge  upon  these  lands.  Upon  default  of  the  owners 
to  pay  the  tax,  the  land  was  to  be  forfeited  to  the  United  States, 
and  the  commissioners  in  that  case  were  to  conduct  public  "tax 
sales",  selling  to  the  highest  bidder,  or  bidding  in  the  property  for 
the  United  States.  The  tax  sale  certificate  of  the  commissioners 
was  to  be  sufficient  to  convey  a  title  in  fee  simple  to  the  land,  free 
from  all  encumbrances. 

Commissioners  were  appointed  in  accordance  with  this  statute 
for  each  of  the  eleven  insurrectionary  states.  It  was  not  possible, 
of  course,  for  the  act  to  be  carried  out  uniformly  throughout  the 
South.  Only  in  those  districts  where  the  Union  forces  maintained 
some  foothold  could  these  tax  sales  be  conducted.  The  following 
table  indicates  the  extent  of  this  partial  enforcement  of  the  law : 

69  Stat.  at  Large,  XII.,  422. 
*°Ibid,  294  foil. 


(33) 


34      THE;  CONFISCATION  OF  PROPERTY  DURING  THE  CIVIL  WAR 

PROCEEDS  OF  SALES  BY  UNITED  STATES  TAX  COMMISSIONERS 

FOR  NON-PAYMENT  OF  THE  DIRECT  TAX 

OF  AUGUST  5,  1861. 61 

Virginia $113,130.57 

South  Carolina 370,000.00 

Florida 64,705.87 

Arkansas 48,067.24 

Tennessee  101,970.52 

The  Union  government  could  hardly  have  devised  a  measure 
more  odious  to  the  people  of  the  South.  The  levy  of  a  federal  tax 
directly  upon  particular  plots  of  ground  in  regions  where  ideas  of 
states'  rights  were  so  strong  as  in  the  Southern  states  was  par 
ticularly  distasteful,  and  the  fact  that  this  method  was  not  adopted 
in  the  North  made  the  partiality  of  the  measure  the  more  apparent. 
The  tax  collector  of  the  enemy's  government  was  thus  brought  into 
immediate  relations  with  the  helpless  citizens  of  those  portions  of 
the  South  which  fell  into  Union  possession,  and  this  unfortunate 
situation  naturally  awakened  the  deepest  resentment.  Objection 
was  made  that  in  view  of  the  added  penalty  of  fifty  percent,  re 
quired  only  in  the  insurrectionary  states,  the  tax  was  not  propor 
tionately  levied,  and  was  therefore  unconstitutional.  In  dealing  with 
this  objection  the  Supreme  Court  held  that  the  fifty  percent  penalty 
was  no  part  of  the  tax,  but  was  a  fine  "for  default  of  voluntary 
payment  in  due  time".  The  validity  of  the  tax  under  the  consti 
tution  was  therefore  upheld. 

Various  objections  were  also  urged  against  the  special  features 
of  the  act  by  which  it  differed  from  ordinary  provisions  for  tax 
sales.  A  valuable  estate,  for  instance,  would  be  sold  to  pay  a  trifling 
tax,  and  the  surplus  over  and  above  the  tax,  instead  of  being  paid 
to  the  owner,  as  in  the  usual  tax  sale,  was  turned  into  the  United 
States  treasury.  Moreover  the  customary  privilege  of  redemption 
which  belongs  to  the  dispossessed  owner  in  the  ordinary  tax  sale, 
was  denied.  Whatever  this  sort  of  proceeding  might  be  called,  it 
is  clear  that  its  effect  was  confiscation.  In  some  cases  commissioners 
required  the  owners  to  pay  the  tax  in  person,  which  was  often  an 
impossibility.  The  question  was  significantly  raised  whether  these 

61  Cong.    Globe,   42   Cong.,    2   sess.,   p.    3387. 


FORFEITURE  UNDER  THE  DIRECT  TAX  LEVY  35 

extraordinary  discriminations  were  consistent  with  the  constitution, 
and  whether  such  a  form  of  procedure  could  be  called  "due  process 
of  law".  Even  granting  that  the  federal  government  had  any 
claims  to  sovereignty  in  the  South  which  would  justify  the  levying 
of  a  tax  upon  them  during  the  rebellion,  it  is  difficult  to  see  how 
these  sweeping  forfeitures  can  be  defended  on  the  ground  of  "tax 
sales". 

The  most  notable  instance  of  seizure  under  the  direct  tax  legis 
lation  was  the  case  of  the  famous  Arlington  estate  in  Virginia,  be 
longing  to  General  Robert  E.  Lee.62  A  tax  amounting  to  $92.07 
was  levied  upon  this  estate,  and  in  September,  1863,  the  whole 
property  was  sold  for  its  non-payment.  The  tax  commissioners 
bid  in  part  of  the  estate  for  the  federal  government  at  $26,800.  For 
other  portions  of  the  estate  there  were  various  other  purchasers. 
The  grounds  acquired  by  the  government  were  made  into  a  national 
cemetery  for  the  graves  of  Union  soldiers. 

After  the  death  of  Mrs.  Robert  E.  Lee,  her  son,  G.  W.  P.  C. 
Lee,  claiming  to  have  valid  title  to  Arlington,  petitioned  Congress 
to  vote  compensation  to  him  in  return  for  which  he  would  yield  all 
his  rights  in  the  property  and  avoid  litigation  for  its  recovery.63 
He  based  his  claim  on  the  ground  that  the  sale  of  the  property  by 
the  commissioners  amounted  to  confiscation,  and  could  not  be  held 
valid.  The  extraordinary  measures  adopted  to  enforce  the  tax  were, 
he  argued,  unconstitutional.  Instead  of  the  sale  of  only  so  much 
of  the  property  as  was  necessary  to  pay  the  tax  with  interest  and 
penalties,  the  whole  estate  was  forfeited  to  the  United  States  and 
sold.  In  this  case  the  amount  of  the  tax  had  actually  been  offered 
by  Mrs.  Lee  through  her  agent,  but  the  commissioners  had  refused 
to  accept  such  payment,  and  the  petitioner  declared  that  this  re 
fusal  rendered  the  whole  proceeding  void.  Further,  it  was  urged, 
that  the  United  States  could  not  in  justice  secure  more  than  a  life 
interest,  and  that  the  national  legislature  could  not  acquire  juris 
diction  over  this  estate  without  the  consent  of  Virginia.  This 
petition  was  referred  to  the  Committee  on  Judiciary,  and  was  not 
heard  of  further.64 

82  J.  K.  Hosmer  refers  to  the  seizure  of  Arlington  as  if  it  were  a  case  under 
the  Confiscation  Act  itself.  As  a  matter  of  fact,  no  process  of  confiscation,  as 
such,  was  undertaken.  Hosmer,  Appeal  to  Arms,  (Am.  Nation,  vol.  20),  p.  172. 

•*  Sen.  Misc.  Doc.  43  Cong.,  1  sess.,  No.  96. 

M  Cong.  Record,  43  Cong.,  1  sess.,  vol.  II.,  pt.  3,  p.  2812. 


36        THE  CONFISCATION  OF  PROPERTY  DURING  THE  CIVIL  WAR 

The  next  phase  of  this  case  was  a  suit  brought  first  in  the  United 
States  circuit  court  in  Alexandria,  Virginia,  and  later  appealed  to 
the  Supreme  Court,  in  which  the  title  of  the  United  States  under 
the  tax  sale  certificate  was  contested.  The  decision  in  the  case  of 
United  States  v.  Lee  is  long  and  technical.65  The  lower  court  had 
declared  Lee's  title  valid,  and  this  decision  was  affirmed.  The  argu 
ments  of  the  court,  however,  did  not  attack  the  validity  of  this 
general  class  of  tax  sales;  it  was  rather  the  conduct  of  these  par 
ticular  commissioners  which  was  denounced.  In  spite  of  the  prin 
ciple  that  the  United  States  cannot  be  sued  without  its  consent 
it  was  held  that  action  could  properly  be  brought  against  persons 
whose  acts  as  agents  of  the  United  States  might  interfere  in  an 
unwarranted  way  with  individual  property  rights.  Since  in  this 
case  the  commissioners  had  established  the  rule  that  owners  must 
pay  the  tax  in  person,  payment  was  thus  made  impossible  in  the 
majority  of  cases,  and  where  the  amount  of  the  tax  had  been  ten 
dered  through  an  agent  and  refused,  no  proceedings  could  be  legally 
begun  which  depended  upon  the  voluntary  default  of  the  owner 
to  pay  the  tax.  Any  tax  sale  certificate  secured  under  such  regu 
lations  was  therefore  held  to  be  invalid. 

In  view  of  this  decision  an  appropriation  became  necessary  in 
order  to  establish  the  title  of  the  United  States  to  the  Arlington 
cemetery.66  The  matter  was  finally  settled  by  the  payment  of 
$150,000  as  compensation  to  the  Lee  heirs,  in  return  for  which 
a  release  of  all  claims  against  the  property  was  secured.67 

The  direct  tax  seizures  in  South  Carolina  illustrate  further  the 
inequalities  which  were  inherent  in  this  form  of  proceeding.68  The 
operations  of  the  tax  commissioners  were  confined  to  a  few  parishes 
in  the  eastern  portion  of  the  state,  but  assessments  were  based  upon 
a  uniform  apportionment  of  the  quota  throughout  the  whole  state. 
The  total  quota  for  South  Carolina  was  $363,570.66.  The  commis 
sioners  collected  $210,789.32  as  taxes,  and  $28,232  as  proceeds  of 
sales  for  non-payment  of  the  direct  tax.  Besides  this,  considerable 
profit  was  secured  to  the  government  by  the  disposition  of  such 
property  as  was  bid  in  for  the  United  States  by  the  commissioners 

65 106  U.  S.  196. 

™Cong.  Record,  47  Cong.,  2  sess.,  vol.  xiv,  pt.  3,  p.  2680. 

87  March  3,   1883.      17.   8.   Statutes,   47   Cong.,   2  sess.,  ch.    141,  p.   584 ;   Cong. 
Record,  47   Cong.,   2   sess.,  vol.  xiv,  pt.   4,   p.   3661. 

88  House  Doc.  45  Cong.,   3  sess.,  no.  101. 


FORFEITURE  UNDER  THE  DIRECT  TAX  LEVY  37 

at  the  tax  sales  instead  of  being  sold  to  private  purchasers.  Part 
of  such  property  was  held  by  the  government  and  rented ;  part  was 
sold  to  loyal  citizens;  part  was  purchased  by  soldiers,  and  part  was 
sold  to  heads  of  families.  The  proceeds  of  these  various  trans 
actions,  added  to  the  amount  actually  collected  as  taxes,  or  secured 
from  original  sales  for  non-payment,  yielded  an  approximate  sum 
of  $512,338,  which  exceeded  the  original  quota  of  the  whole  state 
by  $148,768.  It  will  thus  be  seen  that  though  the  tax  was  enforced 
in  only  a  portion  of  the  state,  yet  the  total  proceeds  derived  by  the 
government  from  all  the  various  transactions  connected  with  the 
collection  of  the  tax  were  far  in  excess  of  the  state's  full  quota.  It 
might  well  be  claimed,  therefore,  that  a  double  inequality  was  in 
volved  ;  a  portion  of  the  citizens  were  made  to  pay  while  others  went 
free,  and  the  state  as  a  whole  was  bearing  more  than  its  propor 
tionate  share  of  the  "tax". 

There  was,  moreover,  in  the  case  of  two  parishes,  those  of  St. 
Luke's  and  St.  Helena,  a  still  further  hardship.69  Here  there  was 
a  general  failure  of  the  owners  to  appear  and  pay  the  tax,  and  the 
commissioners  disposed  of  a  large  quantity  of  land  at  public  auction 
at  a  very  low  price.  Most  of  this  land  was  not  acquired  by  private 
parties,  but  was  bid  in  for  the  government  by  the  commissioners, 
and  later  the  property  was  sold  to  the  former  owners  for  amounts 
greatly  in  excess  of  the  sums  at  which  the  commissioners  had  bid 
in  the  property  for  the  United  States.  In  one  case  a  lot  bid  in  at 
$100  was  later  resold  to  its  former  owner  for  $2,600.  Judge  Nott 
of  the  Court  of  Claims  characterized  this  divestiture  of  property  as 
"exceedingly  pitiable",  and  attributed  such  a  policy  to  the  ''harsher 
judgments  of  the  war". 

These,  we  may  remark,  are  effects  of  the  direct  tax  which  have 
been  generally  overlooked,  since  the  chief  attention  of  the  national 
Congress  has  been  given  to  the  heavy  share  of  the  tax  sustained  by 
the  "loyal"  states  as  compared  with  the  "insurrectionary"  states. 
With  these  larger  phases  of  the  question  which  have  become  a 
matter  of  familiar  history,  we  are  not  at  present  concerned,  since 
the  subject  comes  under  our  notice  not  as  a  tax,  but  as  involving 
an  unequal  and  oppressive  kind  of  forfeiture  which  amounted  to 
virtual  confiscation. 

69  House  Doc.   45  Cong.,  3  sess.,  no.   101,  p.  2. 


38        THE   CONFISCATION   OF   PROPERTY  DURING   THE   CIVIL   WAR 

Although  various  attempts  were  made  to  secure  legislation  ad 
justing  the  many  inequalities  which  resulted  from  the  direct  tax 
of  the  Civil  War,  nothing  was  done  along  this  line  until  March  2, 
1891,  when  an  act  was  passed  providing  for  a  refunding  of  the 
amounts  paid  by  the  several  states  and  territories  under  the  direct 
tax  of  August  5,  1861. 70  So  far  as  restitution  was  possible  for  the 
forfeitures  of  which  we  have  been  speaking  in  this  chapter,  they  were 
provided  in  this  act.  Special  provision  was  made  for  compensat 
ing  those  who  lost  their  lands  in  South  Carolina,  and  a  general 
repayment  was  provided  for  the  benefit  of  all  owners  in  any  state, 
whose  lands  had  been  bid  in  and  sold  under  the  provisions  for 
collecting  this  tax.  Jurisdiction  was  given  to  the  Court  of  Claims 
over  cases  arising  under  these  provisions  for  restitution,  and  its 
decisions  were  fairly  liberal,  but  such  tardy  restorations  could,  of 
course,  only  partially  undo  the  effect  of  the  original  forfeitures.71 

70  26  Stat.   at  Large,  822. 

71  The  following  are  examples   of  such  decisions :     Chaplin  v.   U.   S.,   Ct.    Cl. 
Rep.  29,  p.  231 ;  Glover  et  al.  v.  U.  S.  Ibid,  p.   236  ;  Means  v.  U.  S.  Ct.  Cl.  Rep. 
31,  p.  245;  Hogarth  v.  U.  S.  Ct.  Cl.   Rep.  30,  p.  346. 


IX.  CAPTURED  AND  ABANDONED  PROPERTY 

WE  have  so  far  been  confining  our  attention  to  cases  of  confisca 
tion  by  judicial  action.  It  should  be  remembered,  however,  that  the 
two  specific  laws  of  confiscation,  providing  for  the  judicial  seizure 
of  "rebel"  property  in  federal  courts,  formed  only  an  ineffective 
part  of  a  larger  policy  of  virtual  confiscation  which  contemplated 
the  employment  of  an  elaborate  machinery  for  appropriating  the 
goods  of  the  enemy.  In  the  previous  section  on  the  direct  tax  we 
noticed  one  important  form  of  virtual  confiscation,  and  we  now 
turn  to  another  and  more  sweeping  system  of  appropriating  prop 
erty  which  was  non- judicial  in  character. 

The  confiscation  acts  involved  the  prosecution  of  suits  in  federal 
district  courts,  and  this  was  obviously  impossible  in  insurrectionary 
districts  where  no  such  courts  were  in  operation,  and  where  peaceful 
judicial  process  was  impracticable,  even  though  the  Union  forces 
might  be  in  occupation  of  the  territory.  It  was  to  be  expected, 
however,  that  as  the  federal  armies  advanced  they  would  make  cap 
tures  of  large  amounts  of  private  property,  especially  cotton,  and 
that  there  would  be  left  in  their  train  estates  and  miscellaneous 
property  which  had  been  abandoned  by  the  owners.  Much  of  this 
property  would  necessarily  be  of  such  a  nature  that  the  military 
authorities  could  not  dispose  of  it,  and  unless  some  action  were 
taken  it  would  be  left  without  ownership.  It  was  also  thought 
desirable  to  encourage  the  capture  of  some  of  the  staple  products 
of  the  South,  not  for  direct  military  use,  but  as  a  means  of  re 
ducing  the  enemy's  resources,  and  adding  to  the  resources  of  the 
Union  government. 

To  meet  this  situation  Congress  passed,  March  12,  1863,  the  act  II 
relating  to  "captured  and  abandoned  property".72     Under  this  law  " 
the  Secretary  of  the  Treasury  was  to  appoint  special  agents  to  collect 
property  of  this  kind  in  the  insurrectionary  territory.     The  agents 
were  to  have  nothing  to  do  with  property  used   for  waging  war, 

72  Statutes  at  Large,  XII.,  820.  According  to  an  opinion  submitted  to  the 
Treasury  Department  by  Attorney-General  Speed,  July  5,  1865,  property  hos- 
tilely  seized  by  the  military  authorities  on  land  was  to  be  regarded  as  "cap 
tured",  while  the  term  "abandoned"  was  held  to  apply  to  property  "whose  owner 
shall  be  voluntarily  absent  and  engaged  in,  aiding,  or  encouraging,  the  rebel 
lion".  Sen.  Doc.  40  Cong.,  2  sess.,  no.  22  ;  U.  S.  v.  Padelford,  9  Wallace  531. 

(39) 


40      THE;  CONFISCATION  OF  PROPERTY  DURING  THE  CIVIL  WAR 

such  as  arms,  ordnance,  ships,  etc.,  nor  were  they  to  have  any  au 
thority  over  maritime  prizes.  The  property  thus  collected  was 
either  to  be  devoted  to  public  use  on  due  appraisement  and  cer 
tificate,  or  to  be  forwarded  to  some  place  of  sale  in  a  loyal  state, 
(and  the  proceeds  turned  into  the  treasury.  Provision  was  made  in 
the  law  for  restoration  to  loyal  owners  after  the  war. 

This  act  of  Congress  was  essentially  an  exercise  of  the  belligerent 
right  of  confiscation,  in  a  form  different  from  that  of  the  confisca 
tion  acts,  and  applying  to  property  which  the  latter  could  not  touch. 
The  competence  belonged  to  Congress,  according  to  the  Supreme 
Court,  to  provide  for  the  forfeiture  of  the  property  of  all  persons 
within  the  Confederacy,  loyal  as  well  as  disloyal,  on  the  principle 
that  all  inhabitants  of  enemy  territory  are  enemies.73  This,  how 
ever,  would  have  been  an  extreme  measure,  and  the  restoration  of 
the  property  of  loyal  citizens  was  therefore  provided  for,  but  in 

1  doing  so,  Congress  \vas  renouncing  a  part  of  its  strict  belligerent 

I  rights  as  the  Supreme  Court  understood  them.74 

The  Treasury  Department  proceeded  vigorously  in  carrying  out 
the  provisions  of  this  law,  and  soon  developed  an  elaborate  admin 
istrative  machinery  for  collecting  and  marketing  captured  prop 
erty.75  A  general  agent  was  given  charge  of  the  whole  work,  under 
whom  was  placed  a  large  corps  of  supervising  agents  and  local 
agents,  who  were  in  turn  assisted  by  "agency  aids",  and  customs 
officers  specially  designated  for  this  work  by  the  Secretary  of  the 
Treasury. 

This  army  of  treasury  officials  which  was  thus  set  upon  the 
trail  of  captured  property  in  the  South  did  not  find  their  chase  a 
holiday  pastime.76  Even  though  within  the  Union  lines,  they  found 

73  Young  v.  U.  S.,  97  U.  S.  396  ;  U.  S.  v.  Winchester,  99  U.  S.  372,  at  p.  375. 

74  Briggs  v.  U.  S.,  143  U.  S.  346,  at  p.   356. 

75  Secretary     Fessenden's     Circular     of     Instructions     concerning     commercial 
intercourse,    and    captured    and   abandoned   property,    July    29,    1864.      The    first 
stages  of   the  work   of   enforcing  the   Captured   Property  Act   are   discussed   in 
Finance  Report  1863,  pp.  23-24. 

78  A  general  description  of  the  methods  used  in  collecting  captured  property 
is  to  be  found  in  Secretary  McCulloch's  report,  Nov.  8,  1866,  House  Ex.  Doc. 
39  Cong.,  2  sess.,  no.  97.  To  secure  unpublished  material  concerning  the  opera 
tions  of  the  treasury  officials,  search  has  been  made  in  the  files  of  the  Miscel 
laneous  Division  of  the  Treasury  Department,  where  the  records  concerning 
captured  property  are  deposited.  Here  much  testimony,  more  or  less  reliable, 
is  to  be  found  in  the  form  of  affidavits,  financial  certificates,  and  official 
reports.  This  material  is  the  chief  source  of  the  data  upon  which  this  section 
is  based. 


CAPTURED  AND  ABANDONED   PROPERTY  41 

that  they  were  in  the  enemy's  country,  and  that  the  inhabitants  had 
either  deserted  or  were  hostile  to  the  removal  of  property.  Cases 
of  personal  injury  to  the  officials  were  frequent  enough  to  render 
the  work  highly  dangerous.  Marks  and  other  evidences  of  the 
character  and  ownership  of  the  cotton  were  often  destroyed,  and 
cotton  was  often  hauled  to  the  woods  or  swamps  and  concealed  in 
advance  of  the  agent's  arrival,  or  in  cases  where  this  was  impos 
sible,  it  was  frequently  burned.  Agents  of  the  Confederate  gov 
ernment  were  at  the  same  time  abroad  through  the  South  collecting 
cotton,  and  this  complicated  the  work  of  the  Union  officials,  while 
it  increased  the  tendency  to  evasion  on  the  part  of  private  owners.77 
Naturally  much  of  the  cotton  so  collected  was  in  unfit  condition,  and 
needed  overhauling  and  rebaling  before  being  placed  on  the  market. 
Above  this  difficulty,  there  still  remained  the  danger  of  secret  raids 
upon  the  government  depots,  resulting  in  the  theft  or  demolition  of 
the  cotton,  or  perhaps  the  substitution  of  an  inferior  grade  for  that 
contained  in  the  government  store.  Sales  were  required  to  be  con 
ducted  in  the  loyal  states,  but  a  serious  obstacle  to  this  plan  was  the 
lack  of  sufficient  means  of  transportation.  Naturally  the  chief  con 
cern  of  the  quartermasters  in  the  field  was  the  forwarding  of  sup 
plies  to  the  army,  and  they  showed  little  zeal  in  co-operating  with 
the  treasury  agents  for  the  removal  of  captured  property. 

Because  of  the  perilous  character  of  this  work  of  bringing  in 
property  from  the  insurrectionary  districts,  the  government  offered 
large  inducements  to  private  individuals  who  would  undergo  the 
necessary  risks.  Treasury  officials  offered  to  pay  25  percent  of  the 
proceeds  to  any  who  \vould  bale  up  and  bring  in  cotton  and  deliver 
it  to  the  agent  at  one  of  the  shipping  ports.  This  form  of  contract 
did  not  authorize  purchases  within  the  Confederate  lines.78  A 

"  It  is  well  known  that  considerable  cotton  was  burned  by  the  Confederate 
authorities  to  prevent  it  from  falling  into  the  hands  of  the  Union  government. 
Among  the  Confederate  cotton  records,  in  charge  of  the  Miscellaneous  Division 
of  the  Treasury  Department,  is  a  book  containing  the  names  of  persons  who 
had  made  claims  on  the  Confederate  treasury  for  cotton  destroyed  by  their 
own  forces,  among  whom  was  President  Jefferson  Davis  who  made  claim  for 
two  hundred  bales  burned.  The  following  are  published  documents  dealing 
with  this  general  subject :  Report  of  A.  Roane,  Chief  of  Confederate  Produce 
Loan  Office,  House  Misc.  Doc.  40  Cong.,  1  sess.,  no.  190,  p.  39  ;  Report  of  De- 
Bow,  General  Confederate  Cotton  Agent,  Ibid;  Treas.  Dept.  Circular,  Jan.  9, 
1900,  no.  4.  See  also  account  of  the  facts  in  Mrs.  Alexander's  Cotton,  2  Wal 
lace  405. 

"House  Ex.  Doc.  39  Cong.,  2  sess.,  no.  97,  p.  3  ;  U.  S.  v.  Lane,  8  Wallace  185. 


42        THE  CONFISCATION   OF  PROPERTY  DURING   THE  CIVIL  WAR 

peculiar  kind  of  executive  permit,  however,  was  issued  by  President 
Lincoln  which  authorized  the  holder,  even  over  the  protest  of  the 
military  authorities,  to  pass  through  the  lines  and  seize  property  in 
the  insurrectionary  districts,  the  licensee  being  allowed  to  keep 
three-fourths  of  the  proceeds.79  After  Lincoln's  death,  some  of  the 
licensees  were  deprived  of  the  property,  and  the  proceeds  were  put 
into  the  treasury.  The  Supreme  Court  decided  that  the  President 
had  no  power  to  make  these  contracts,  since  they  were  in  violation 
of  the  non-intercourse  acts.80  Wherever  purchases  were  made  be 
yond  the  lines  of  military  occupation  of  the  federal  forces  they 
were  outlawed.  Later,  however,  Congress  by  a  special  act  came 
to  the  relief  of  claimants  who  were  thus  dispossessed. 

As  might  be  expected,  this  system  of  collecting  property  pro 
duced  many  irregularities  and  cases  of  fraud.  Individuals  under 
contract  to  collect  and  deliver  cotton  to  a  Union  agent  would  often 
seize  property  which  they  had  no  right  to  touch,  or  would  collect 
heavy  bales  of  good  quality  and  turn  over  to  the  government  light 
bales  of  poor  quality.  Residents  in  some  cases  represented  them 
selves  as  agents  for  the  Union  government,  and  simply  robbed  under 
this  pretended  authority,  not  condescending  to  show  by  what  right 
they  made  their  seizures.  Agents  themselves  blundered  at  times 
because  of  a  misunderstanding  of  their  duties,  or  committed  out 
rages  in  deliberate  dishonesty.  The  unscrupulous  agent,  of  course, 
had  exceptional  opportunities  for  gain.  In  the  process  of  repacking, 
large  quantities  of  cotton  might  be  abstracted  and  disposed  of  at 
private  sale.  False  reports  might  be  submitted,  thus  concealing  the 
true  amount  received.  Immediate  supervision  might  be  evaded  by 
the  pretext  of  direct  orders  from  Washington  to  dispose  of  the 
cotton  in  some  other  way  than  through  the  office  of  the  next  superior 
agent.  In  certain  districts,  military  authorities  were  implicated  in 
defrauding  the  government,  and  in  such  a  situation,  lawless  bands 
of  thieves  were  encouraged  while  good  citizens  were  intimidated. 

Considering  these  difficulties,  the  Captured  Property  Act  was 
extensively  enforced.  As  reported  officially  in  May,  1868,  the  gross 
proceeds  from  the  sale  of  cotton  were  $29,518,041,  and  the  gross 

79  Report  of  House  Com.   on  Judiciary,  House  Reports,  45  Cong.,  3  sess.,  no. 
83.     In  the  case  of  U.  S.  v.  129  Packages,  27  Fed.  Cas.  284,  such  a  permit  was 
used  fraudulently  to  ship  whiskey  into  a  Union  camp. 

80  Ouachita  Cotton  Case,  6  Wallace,  521;  McKee  v.  U.  S.,  8  Wallace  163. 


CAPTURED  AND  ABANDONED   PROPERTY  43 

proceeds  from  miscellaneous  property,  $1,309,650.     The  net  total 
of  captured  and  abandoned  property  was  $25,257,93 1.81 

It  will  be  seen  that  over  ninety-five  percent  of  the  property 
handled  by  the  treasury  agents  was  cotton.    It  is  not  hard  to  under 
stand  why  this  important  commodity  was  so  eagerly  sought  by  the 
Union  authorities.     Being  the  greatest  staple  product  of  the  South, 
it  was  regarded  as  their  most  valuable  source  of  wealth,  and  was 
held  to  contribute  so  directly  to  the  support  of  the  rebellion  that  it 
should  not  be  regarded  in  the  same  light  as  ordinary  private  prop 
erty.    It  was  declared  by  the  Supreme  Court  to  be  a  proper  subject  I 
for  capture  by  the  Union  authorities  during  the  Civil  War,  and  not  I 
to  be  protected  by  the  general  rule  of  international  law  which  con-  j 
demns  the  seizure  of  private  property  on  land.82 

n  Sen.  Ex.  Doc.  40  Cong.,  2  sess.,  no.  56,  p.  52. 

"Mrs.  Alexander's  Cotton,  2  Wallace  404  ;  Briggs  v.  U.  S.,  143  U.  S.  346,  357  ; 
Whitfield  v.  U.  S.  92  U.  S.  165.  In  the  last  case  the  court  declared  that  cotton 
was  "during  the  late  war,  as  much  hostile  property  as  the  military  supplies 
and  munitions  it  was  used  to  obtain". 


X.     THE  ADMINISTRATION  OF  ABANDONED  ESTATES 

THE  control  of  deserted  houses  and  plantations  was  one  of  the 
important  problems  involved  in  the  execution  of  the  Captured  and 
Abandoned  Property  Act.  Property  whose  owner  was  absent  in 
aid  of  the  insurrection  was  legally  regarded  as  "abandoned",  and 
was  given  over  to  the  jurisdiction  of  the  Treasury  Department.83 
No  attempt  was  made  to  disturb  the  title  to  this  deserted  property, 
some  of  which,  in  sipte  of  the  legal  definition,  was  understood  to 
belong  to  loyal  owners;  it  was  merely  held  under  the  temporary 
control  of  the  Union  officials,  ready  to  be  returned  to  its  owners 
after  the  war  in  the  event  of  their  loyalty  being  proved,  or  to  be 
confiscated  if  owned  by  a  "rebel".  The  property  was  ordinarily  put 
in  the  hands  of  tenants  who  engaged  to  cultivate  it,  but  in  some 
cases,  especially  in  towns,  it  was  appropriated  to  the  relief  of  needy 
applicants  who  could  show  both  poverty  and  loyalty. 

The  machinery  for  administering  these  abandoned  estates,  as 
illustrated  by  the  case  of  Louisiana,84  involved  a  plantation  bureau 
at  New  Orleans,  in  charge  of  a  "Superintendent  of  Plantations" 
under  whom  was  placed  a  corps  of  agents  and  inspectors  whose 
function  it  was  to  keep  the  central  office  in  touch  with  the  large 
number  of  lessees  and  occupants  to  whom  the  estates  were  leased 
or  granted.  The  rents  and  proceeds  derived  from  this  period  of 
temporary  control  were  appropriated  by  the  government,  and  turned 
in  as  a  part  of  the  captured  and  abandoned  property  "fund". 

The  disturbance  of  the  ordinary  conditions  of  life  which  is 
incidental  to  warfare,  was  nowhere  more  strikingly  revealed  than  in 
connection  with  this  system  of  operating  deserted  plantations. 
Neglect  of  improvements,  dilapidation  of  buildings,  and  deteriora 
tion  due  to  inexperienced  farming  were  everywhere  evident.  The 
lessee's  interest  naturally  extended  only  to  the  harvesting  of  the  im- 

83  Stat.  at  Large,  XII,  820,  sec.  1  ;  XIII,  375. 

84  The    records    of    these    transactions   are    deposited    in    the    archives    of    the 
Treasury  Department  at  Washington,   in  charge  of  the  Miscellaneous   Division. 
The  following  titles  will  indicate  the  nature  of  this  unpublished  material :   List 
of  Plantations  transferred  to  the  Treasury  Department,  third  agency,   by  S.   B. 
Holabird,  Col.  and  Chief  Quartermaster,  Dept.  of  Gulf,  Oct.  1,  1863  ;  Plantation 
Inventories,    Bk.    no.    74 ;     Plantation    Bureau    Records,    containing    inspectors' 
reports,   Bk.    no.    72. 

(44) 


THE  ADMINISTRATION   OF  ABANDONED  ESTATES  45 

mediate  crop,  and  this  object  was  furthered  in  disregard  of  the  per 
manent  up-keep  of  the  property.  Several  plantations  might  at  times 
be  in  control  of  one  individual  or  firm  and  this  led  to  the  transfer 
and  indiscriminate  mixture  of  movable  property  which  should  have 
been  localized  in  particular  estates.  The  negroes,  suddenly  shifted 
to  a  free  status  and  to  a  system  of  lax  discipline,  became  unruly  and 
faithless  to  contract.  Offers  of  higher  wages  or  easier  work  would 
readily  seduce  them  from  one  plantation  to  another  and  such  a 
departure  of  laborers  might  occasion  the  loss  of  a  whole  crop. 
Trouble  arose  also  because  of  the  "hands"  claiming  the  right  to 
plant  cotton  or  anything  else  in  their  respective  patches  regardless 
of  the  requirements  of  the  overseers.  All  of  these  difficulties  of 
management  were  enhanced  by  the  military  authorities  who  caused 
constant  annoyance  by  deporting  mules  without  compensation, 
issuing  full  rations  to  idle  negroes,  and  enrolling  the  "hands"  as 
"contraband  troops".  It  sometimes  happened  that  a  plantation  might 
be  occupied  for  months  as  a  camp  or  a  recruiting  station,  making 
successful  cultivation  impossible. 

It  is  clear  that  this  whole  system,  in  its  essential  features, 
amounted  to  temporary  confiscation.  The  government  based  its 
claim  to  the  proceeds  of  "captured"  property  and  the  revenue  from 
deserted  property  during  the  period  of  its  abandonment,  upon  the 
owner's  disloyalty.  In  the  measures  adopted  after  the  war,  how 
ever,  the  hardships  caused  by  confiscation  in  its  various  forms  were 
considerably  mitigated,  and  this  was  especially  true  of  the  seizures 
made  under  the  Captured  Property  Act.  Seizure  in  these  cases  did 
not  involve  final  condemnation,  since  the  statute  itself  contemplated 
relief  to  all  "loyal"  claimants  who  would,  within  two  years  after 
the  close  of  the  war,  prove  their  right  before  the  Court  of  Claims. 
In  addition,  the  executive  policy  of  unconditional  pardon  and  gen 
eral  amnesty  adopted  after  the  war,  removed  finally  all  distinction 
between  "loyal"  and  "disloyal"  owners,  and  required  the  restora 
tion,  so  far  as  practicable,  of  all  forfeited  property  rights. 


XI.  THE  RESTORATION  OF  PROPERTY 

IN  treating  the  question  of  restorations  as  affecting  forfeited 
property  certain  incidental  methods  will  be  briefly  examined,  and 
then  the  work  of  the  Court  of  Claims  will  be  somewhat  more  fully 
considered.85  Both  during  and  after  the  war  we  find  that  direct 

85  It  will  perhaps  be  in  order  to  give  at  this  point  a  brief  explanation  of  the 
effect  of  pardon  upon  confiscated  property.  The  first  pardon  proclamation  of 
President  Lincoln,  and  the  first  three  of  President  Johnson  contained  various 
exceptions  and  conditions,  among  which  were  provisions  that  confiscated  prop 
erty  should  not  be  returned.  Finally,  however,  a  proclamation  of  December  25, 
1868,  declared  an  unconditional  pardon  without  the  requirement  of  an  oath, 
and  without  reservation  as  to  forfeited  property  rights.  So  far  as  the  execu 
tive  policy  is  concerned,  there  seems  to  have  been  no  very  definite  program 
touching  the  effect  of  pardon  upon  proceedings  and  judgments  under  the  Con 
fiscation  Acts.  Attorney-General  Speed's  first  official  utterance  on  the  subject, 
issued  in  the  form  of  instructions  to  district  attorneys  in  May,  1865,  directed  the 
discontinuance  of  confiscation  proceedings,  but  these  orders  were  later  revoked, 
and  district  attorneys  were  directed  to  press  cases  forward  to  an  early  determi 
nation.  In  the  order  of  President  Johnson  regarding  the  re-establishment  of  the 
authority  of  the  United  States  in  Virginia  after  the  close  of  the  war,  we  find 
the  following:  "The  Attorney-General  will  instruct  the  proper  officials  to  libel 
and  bring  to  judgment,  confiscation,  and  sale,  property  subject  to  confiscation,  and 
enforce  the  administration  of  justice  within  said  stated.  In  accordance  with 
this  order.  Speed  directed  District  Attorney  Chandler  to  see  that  the  appropriate 
officials  were  instructed  to  perform  their  duties  as  the  President  directed.  Letter 
Books  of  the  Department  of  Justice,  1865  and  1866  ;  Exec.  Order,  May  9,  1865, 
Offic.  Rec.,  third  series,  V,  p.  14.  The  problem  was  ultimately  disposed  of  by 
the  Supreme  Court  in  a  series  of  decisions.  As  regards  the  first  confiscation 
act  the  question  was  decided  in  1867  in  the  case  of  Armstrong's  Foundry,  6 
Wallace  766,  where  the  court  held  that  the  statute  regarded  the  owner's  con 
sent  to  the  hostile  use  of  the  property  as  an  offense  of  which  confiscation  was 
the  penalty,  hence  pardon  would  restore  to  the  claimant  that  portion  of  the 
proceeds  which  went  to  the  government,  no  opinion  being  expressed  as  to  the 
informer's  share.  A  different  and  somewhat  confusing  line  of  interpretation 
was  followed  in  the  case  of  the  act  of  1862,  for  here  the  court  declared  that 
not  even  universal  amnesty  could  restore  the  lost  property  rights.  The  court 
argued  that  the  second  confiscation  act  was  passed  in  exercise  of  belligerent 
rights,  not  for  the  punishment  of  treason,  hence  pardon  of  the  traitor  could 
not  relieve  him  of  the  forfeiture.  It  was  further  maintained  that  property 
which  had  been  sold  to  a  purchaser  in  good  faith  and  for  value  could  not  be 
interfered  with,  and  that  the  proceeds  deposited  In  the  treasury  were  beyond 
the  reach  of  judicial  action,  since  Congress  alone  has  power  to  reappropriate 
money  covered  into  the  treasury.  Semmes  v.  U.  S.,  91  U.  S.  27  ;  Knote  v.  U.  S., 
95  U.  S.  149.  The  judicial  interpretation  of  the  two  acts  is,  in  fact,  some 
what  puzzling,  and  it  does  not  appear  that  any  broad  underlying  principles 
were  consistently  adhered  to.  In  the  case  of  the  act  of  1861  the  whole  title  in 
fee  was  held  to  be  surrendered  on  the  ground  that  the  proceeding  was  merely 
against  the  property,  but  the  pardoned  owner  was  as  we  have  just  seen  entitled 
to  that  share  of  the  proceeds  which  went  to  the  government.  In  seizures  under 
the  act  of  1862  the  life  interest  only  was  forfeited,  thus  at  least  partly  recog 
nizing  the  confiscation  as  a  penalty  for  a  criminal  offense,  but  no  recovery  could 
be  secured  by  reason  of  pardon.  Moreover,  in  the  very  brief  opinion  in  the 
case  of  Armstrong's  Foundry  nothing  is  said  about  the  exclusive  right  of 
Congress  to  control  the  appropriation  of  money  from  the  treasury,  though  in 
the  case  of  Knote  v.  United  States,  this  was  made  one  of  the  chief  grounds  for 
refusing  restoration. 

(46) 


THE  RESTORATION*  OF  PROPERTY  47 

methods  of  release  were  followed  which  disregarded,  in  some 
measure,  the  statutory  jurisdiction  of  the  Court  of  Claims  over  these 
cases.  Quartermasters  at  times  released  property  secured  by  mili 
tary  seizure  before  it  had  passed  to  the  treasury  officials.  The 
Secretary  of  the  Treasury,  who  was  continually  beset  with  appeals 
concerning  erroneous  seizures,  exercised  regularly  during  the  war 
the  judicial  function  of  allowing  releases  if  convinced  of  the  bona 
fide  character  of  the  applicants.86  This  policy  he  continued  for 
some  months  after  the  war,  until,  by  an  opinion  of  the  Attorney- 
General,  these  cases  were  all  referred  to, the  Court  of  Claims. 

Another  important  agency  concerned  in  the  restoration  of  prop 
erty  was  the  Bureau  of  Refugees,  Freedmen  and  Abandoned 
Lands.  This  institution  was  created  by  Congress,  March  3,  1865, 
to  provide  protection  and  support  for  emancipated  negroes,  and  to 
it  control  of  confiscated,  captured,  and  abandoned  real  property  was 
entrusted.87  Estates  which  had  been  administered  on  a  lease  system 
by  treasury  agents  were  placed  in  charge  of  the  bureau  as  was 
also  property  seized  for  judicial  confiscation  but  not  actually  con 
demned,  and  a  miscellaneous  class  of  property  in  the  hands  of  mili 
tary  authorities  at  the  close  of  the  war.  The  original  intention  was 
that  deserted  lands  should  be  allotted  in  small  holdings  to  indi 
vidual  freedmen,  and,  in  South  Carolina  and  Georgia,  some  land 
was  actually  assigned.  In  general,  however,  the  bureau  either  used 
its  land  for  colonies  of  freedmen,  or  continued  the  lease  system  in 
order  to  make  its  property  productive  of  revenue. 

At  first  the  bureau  adopted  a  cautious  policy  regarding  restora 
tions,  and  declined  all  applications  not  supported  by  proof  of  past 
as  well  as  present  loyalty.  By  President  Johnson's  order  in  August, 
1865,  however,  the  bureau  was  instructed  to  return  the  property 
of  all  who  were  included  in  the  partial  amnesty  proclamations  of 
that  year,  or  who,  if  excluded  from  these  proclamations,  could  show 
certificates  of  special  pardon.  As  a  result  of  these  instructions, 
the  bureau  was  compelled  to  part  with  the  greater  portion  of  the 
property  once  under  its  control,  and  the  plan  of  allotment  to  freed 
men  was  defeated  because  of  the  uncertainty  of  tenure  applying 

*°  The  actual  adjudication  of  these  claims  rested  in  fact  with  the  local  agent ; 
that  is,  he  would  send  in  the  papers  with  his  recommendation  for  the  Secre 
tary's  action.  Report  of  Sec.  McCulloch,  Sen.  Ex.  Doc.  40  Cong..  2  sess.,  no.  22. 

"  Stat.  at  Large,  XIII,  507. 


48      THE;  CONFISCATION  OF  PROPERTY  DURING  THE  CIVIL  WAR 

to  the  bureau's  holdings.  A  report  of  Commissioner  Howard  shows 
that  the  officers  of  the  bureau  restored  15,452  acres  of  land  seized 
under  the  second  confiscation  act;  14,652  acres  received  as  aban 
doned  and  allotted  to  freedmen,  and  400,000  acres  of  abandoned 
property  which  had  never  been  allotted.  Thus  the  total  restora 
tions  amounted  to  430,104  acres.88 

88  After  President  Johnson's  order  the  rules  followed  by  the  bureau  in  con 
nection  with  these  restorations  were  that  land  should  not  be  regarded  as  confis 
cated  until  condemned  and  sold  by  a  federal  court ;  that  property  not  properly 
considered  abandoned  or  confiscated  should  be  surrendered  to  claimants ;  that 
property  be  restored  to  pardoned  "rebels",  and  that  restoration  of  land  under 
cultivation  be  conditioned  upon  the  payment  by  the  claimant  of  an  amount 
sufficient  to  compensate  loyal  refugees  for  their  labor  in  working  the  lands. 
For  the  action  of  the  Freedmen's  Bureau  regarding  property  see :  General 
Order,  War  Dept.  no.  110,  Offic.  Rec.  third  series,  V,  51;  Reports  of  Gen'l  O.  O. 
Howard,  Com'r,  House  'Ex.  Doc.  39  Cong.,  1  sess.,  no.  11 ;  House  Misc.  Doc.  38 
Cong.,  1  sess.,  no.  78  ;  House  Ex.  Doc.  39  Cong.,  1  sess.,  no.  19  ;  Ibid,  no.  99  ; 
Peirce,  The  Freedmen's  Bureau,  21,  22,  24. 


XII.  RESTORATIONS  BY  THE  COURT  OF  CLAIMS 

The  incidental  methods  of  restoring  property  noted  in  the  forego 
ing  section,  were  all  subordinate  to  the  work  of  the  Court  of  Claims 
— the  regularly  designated  tribunal  for  adjudicating  cases  of  cap 
tured  and  abandoned  property,  and  the  only  agency  by  which  the 
grounds  of  release  were  subjected  to  a  strictly  judicial  determina 
tion.  In  dealing  with  these  cases  the  Court  of  Claims  followed, 
not  too  rigidly,  the  terms  of  the  various  statutes  involved,89  and 
introduced  certain  rules  of  its  own  making.  The  claimant  was 
required  to  show  that  he  was  the  owner  of  the  property  claimed  and 
that  he  had  never  given  aid  or  comfort  to  the  rebellion.  The  govern 
ment  was  not  to  be  loaded  with  the  burden  of  proving  disloyalty. 
Voluntary  residence  in  an  insurrectionary  district  was  taken  as 
prima  facie  evidence  of  a  rebellious  character,  and  this  must  be  re 
butted  by  satisfactory  testimony  covering  the  whole  period  of  the 
war,  and  showing  that  no  act  of  sympathy  to  the  Confederate  move 
ment  had  been  willingly  performed. 

The  Court  of  Claims  thus  became  the  tribunal  for  judging  the 
facts  as  to  the  conduct  of  thousands  of  professed  Unionists  in  the 
South,  and  its  hearings  assumed  somewhat  the  character  of  a 
judgment  day  proceeding,  where,  after  the  deeds  of  all  had  been 
laid  bare,  the  faithful  were  rewarded  and  the  rebellious  turned 
away.  The  voluminous  testimony  which  the  court  examined  con 
stitutes  perahaps  the  best  body  of  material  revealing  in  detail  the 
conduct  of  "loyal"  Southerners,  and  for  the  historian  who  takes  up 
the  study  of  the  Civil  War  loyalists  it  will  have  somewhat  the  same 

89  The  following  provision  for  the  reclamation  of  property  was  included  in 
the  Captured  and  Abandoned  Property  Act :  "Any  person  claiming  to  have  been 
the  owner  of  any  such  captured  or  abandoned  property  may,  at  any  time 
within  two  years  after  the  suppression  of  the  rebellion,  prefer  his  claim  to  the 
proceeds  thereof  In  the  Court  of  Claims ;  and,  on  proof  to  the  satisfaction  of 
said  Court  of  his  ownership  of  said  property,  of  his  right  to  the  proceeds 
thereof,  and  that  he  has  never  given  any  aid  or  comfort  to  the  present  rebel 
lion,  may  receive  the  residue  of  such  proceeds  after  the  deduction  of  any  pur 
chase  money  which  may  have  been  paid,  together  with  the  expense  of  trans 
portation  and  sale  of  such  property  and  any  other  lawful  expenses  attending 
the  disposition  thereof".  Stat.  at  Large,  XII,  820,  Sec.  3.  By  a  further  enact 
ment  of  July  27,  1868,  the  remedy  thus  given  was  declared  to  be  exclusive, 
precluding  the  claimant  from  "suit  at  common  law,  or  any  other  mode  of 
redress  whatever".  Ibid.  XV,  243,  Sec.  3. 

(49) 


50        THE   CONFISCATION   OF   PROPERTY  DURING   THE   CIVIL   WAR 

value  as  the  papers  of  the  New  York  royal  commission  had  for 
the  study  of  the  corresponding  topic  in  the  Revolutionary  War.90 

Men  and  women  of  Union  sympathies,  as  this  testimony  shows, 
were  scattered  in  considerable  number  throughout  the  South.  Sur 
rounded  as  they  were  by  a  repressing  and  persecuting  majority, 
they  naturally  found  it  difficult  to  express  their  loyalty  in  any 
active,  organized  form.  They  had  to  be  content,  therefore,  with  a 
negative  attitude,  a  sort  of  "passive  resistance",  refusing  to  take 
any  voluntary  measures  against  the  government  at  Washington, 
and  performing  individual  acts  of  friendship  to  the  Union  cause. 
We  find  them  resisting  the  Confederate  draft,  carrying  provisions 
and  medicine  to  the  Union  soldiers,  contributing  funds  for  helping 
the  "blue-coats",  attending  the  boys  in  the  hospitals,  and  in  other 
equally  mild  ways  promoting  the  Union  cause. 

This  "loyalty",  which  meant  simply  treason  from  the  stand 
point  of  southern  communities  and  neighborhoods,  naturally  in 
curred  local  persecution,  and  the  Unionist  of  the  South  moved  con 
stantly  in  an  atmosphere  of  scorn  and  prejudice,  and  was  continually 
disturbed  by  threats  of  personal  violence.  Furthermore,  he  was 
often  compelled  against  his  will  to  give  some  support  to  the  southern 
cause.  It  was  an  exceptional  Unionist  indeed  who  was  not  pressed 
into  the  conscript  lines,  or  compelled  to  subscribe  to  a  Confederate 
loan,  or  forced  to  labor  on  entrenchments,  and  in  addition  to  all 
this  he  must  of  course  pay  taxes  into  the  "rebel"  treasury,  how 
ever  loud  might  be  his  protest.  Children  even  caught  up  the  national 
feud,  and  the  refusal  of  one  daring  youth  to  give  up  the  Stars  and 
Stripes  for  the  neighbor  boys  to  spit  upon  resulted  in  a  severe 
laceration,  and  later  in  a  fatal  blow  from  a  brick-bat. 

In  conducting  these  suits,  the  Court  of  Claims  found  its  docket 
well  crowded.  The  total  amount  paid  out  in  judgments  in  such 
cases  up  to  February  4.  1888,  was  reported  as  $9,864,300.75. 91 
Wrhen  we  remember  that  the  sums  involved  in  each  case  were 
usually  small,  and  that  these  figures  represent  only  the  claims 

90  Testimony  of  the  sort  here  referred  to  may  be  found  in  the  following  pub 
lished  reports  of  cases:  Ct.  of  Cls.  Repts:  III,  19,  177.  218,  240,  390;  IV.  337; 
V,  412,  586,  706. 

01  Treas.  Dept.  Circular,  Jan.  9,  1900,  no.  4.  For  a  list  of  judgments  ren 
dered  by  the  Court  of  Claims  between  March,  1863,  and  March,  1867,  see: 
House  Misc.  Doc.  40  Cong.,  1  sess.,  no.  500,  pp.  2-9. 


RESTORATIONS  BY  THE  COURT  OF  CLAIMS  51 

which  were  allowed,  we  can  form  an  idea  of  the  vast  amount  of 
this  litigation  which  the  court  handled. 

The  most  critical  point  of  law  touching  these  claims  related 
to  the  effect  of  pardon  and  amnesty  action  of  the  President  upon 
the  rights  of  claimants  for  property  seized  during  the  war.  Were 
disloyal  owners  permanently  divested  of  their  property  by  that  pro 
viso  of  the  Captured  Property  Act  which  required  proof  that  the 
owner  had  "never  given  any  aid  or  comfort  to  the  present  rebel 
lion",  or  could  the  consequences  of  disloyalty  be  avoided  by  the 
President's  proclamation  of  pardon  and  amnesty,  and  the  owner's 
acceptance  of  the  oath  of  allegiance?  This  question  was  presented 
in  the  case  of  United  States  z>,  Klein,  appealed  from  the  Court  of 
Claims  to  the  Supreme  Court.92  The  most  liberal  view  of  the  case 
was  sustained  by  the  latter  tribunal.  In  main  substance  the  opinion 
was  that  Congress  had  intended  to  restore  property  not  only  to  loyal 
owners,  but  to  those  who  had  been  hostile  and  might  later  become 
loyal ;  that  after  the  proclamation  of  general  amnesty  the  restora 
tion  of  property  to  all  bona  fide  owners  claiming  under  the  Cap 
tured  Property  Act  became  the  duty  of  the  government,  and  that 
such  restoration  became  the  "absolute  right  of  the  persons  par 
doned",  the  government  having  constituted  itself  the  trustee,  not 
only  for  claimants  protected  by  the  original  act,  but  for  all  who 
might  later  be  recognized  as  entitled  to  their  property.  "  'Pardon 
and  restoration  of  political  rights'  ",  declared  the  court,  "were  in 
return  for  the  oath  and  its  fulfillment.  To  refuse  it  would  be  a 
breach  of  faith  not  less  cruel  and  astounding  than  to  abandon  the 
freed  people  whom  the  executive  had  promised  to  maintain  in 
their  freedom". 

After  this  decision  of  the  Supreme  Court,  therefore,  all  claim 
ants  who  had  been  dispossessed  through  the  operation  of  the  Cap 
tured  Property  Act  were,  regardless  of  loyalty,  entitled  to  restora 
tion.  There  was,  however,  another  proviso  in  the  original  act  which 
more  seriously  affected  the  claimants'  prospects  of  recovery.  The 
suits  must,  according  to  the  law,  be  brought  within  two  years  "after 
the  suppression  of  the  rebellion".  The  claim,  for  instance,  in  the 
case  of  United  States  v.  Anderson  was  preferred  June  5,  1868.93 

82 13   Wallace   168.     The   decision    in    U.    S.   v.   Padelford,    9    Wallace,    531,    is 
similar. 

9»  9  Wallace  56. 


52      THE;  CONFISCATION  OF  PROPERTY  DURING  THE  CIVIL  WAR 

Could  this  be  construed  as  having  been  presented  within  the  pre 
scribed  limit?  Here  the  court  was  called  upon  to  fix  the  exact 
date  when,  in  the  strict  legal  sense,  the  rebellion  ceased.  Again  a 
liberal  construction  was  adopted.  The  court  held  that  Congress 
could  not  be  supposed  to  have  left  possible  claimants  to  decide  this 
matter  for  themselves,  and  that,  in  lieu  of  a  formal  treaty  of  peace 
which  in  the  case  of  a  foreign  war  serves  to  mark  the  exact  point 
at  which  the  legal  relations  peculiar  to  war  cease,  there  must  be 
some  public  act  or  legislation  which  will  serve  to  fix  definitely  such 
a  point.  The  date  of  President  Johnson's  proclamation,  August  20, 
1866,  in  which  for  the  first  time  the  entire  suppression  of  the 
rebellion  throughout  the  country  was  declared,  was  taken  by  the 
court  as  marking  the  legal  termination  of  the  war.  It  was  pointed 
out  that  on  March  2,  1867,  Congress,  referring  to  an  act  of  June 
20,  1864,  regarding  the  pay  of  non-commissioned  officers  and 
privates,  had  continued  the  act  in  force  for  three  years  "from  and 
after  the  close  of  the  rebellion,  as  announced  by  the  proclamation 
of  the  President,  August  20,  1866".  This  date  had  therefore  been 
declared  by  the  executive  and  legislative  departments  to  be  the 
termination  of  the  rebellion,  and  the  court  declared  that  it  must 
therefore  be  so  applied  with  reference  to  the  rights  intended  to  be 
secured  by  the  Captured  Property  Act. 

Unfortunately  for  the  claimants,  the  decision  in  the  Klein  case 
did  not  come  until  1869,  after  the  period  had  expired  during  which, 
according  to  the  declaration  of  the  Supreme  Court  in  the  Anderson 
case,  the  recovery  of  property  was  possible.  It  thus  appeared  that 
there  were  many  claimants  to  whom,  as  a  matter  of  equity,  Con 
gress  owed  relief,  while  at  the  same  time  it  was  alleged  that  a 
considerable  sum,  variously  reported  but  supposed  to  be  well  over 
ten  million  dollars,  remained  as  a  part  of  the  captured  property  or 
cotton  "fund"  after  the  necessary  deductions  were  made.  For  this 
reason  agitation  was  begun  to  secure  relief  for  those  claimants 
who,  under  the  very  natural  misapprehension  that  they  would  be 
required  to  prove  loyalty,  had  allowed  the  two  years'  limitation  to 
lapse  without  taking  advantage  of  their  right  to  plead  before  the 
Court  of  Claims.  Various  bills  to  revive  in  favor  of  such  claim 
ants  the  right  of  action  before  the  Court  of  Claims  have  been  pre 
sented  to  Congress,  and  the  House  Committee  on  Judiciary  has  at 


RESTORATIONS  BY  THE  COURT  OF  CLAIMS  53 

various  times  reported  favorably  on  such  legislation,  but  no  action 
has  yet  been  taken.94  Meanwhile  curious  suggestions  have  been 
made  regarding  the  disposition  of  this  "fund",  such  as  dividing  it 
among  the  states  or  devoting  it  to  the  relief  of  ex-Confederate 
soldiers,  but  these  proposals,  like  the  proposed  bills  and  committee 
reports,  have  been  lost  in  the  general  oblivion  of  the  Congressional 
calendar. 

In  general  the  various  reports  and  proposals  presented  on  this 
complicated  subject  are  inconsistent.  The  number  of  claimants 
whose  right  of  action  was  debarred  has  doubtless  been  greatly  ex 
aggerated,  while  a  careful  analysis  shows  that  the  figures  and 
assertions  regarding  the  so-called  "fund"  in  the  treasury  are  mis 
leading.  In  the  report  of  the  House  Committee  on  Judiciary,  sub 
mitted  to  the  first  session  of  the  fifty-second  Congress,  we  find  a 
statistical  exhibit  which  shows  $31,722,466.20  as  the  "whole  amount 
of  the  sales  from  captured  and  abandoned  property",  and  after  the 
deduction  of  such  items  as  cost  of  collecting,  amounts  transferred 
or  released,  or  amounts  paid  out  of  the  "fund"  on  judgments  or 
special  acts  of  release,  a  balance  of  $10,512,007.96  is  shown  as  the 
amount  remaining  from  the  captured  property  "fund".95 

By  reference,  however,  to  the  report  of  the  Register  of  the 
Treasury,  February  4,  1888,  it  appears  that  the  net  receipts  from 
captured  and  abandoned  property  were  $26,887,584.39.  Not  all  of 
this,  however,  was  secured  from  the  sale  of  privately  owned  cotton.96 
A  sum  exceeding  six  million  dollars  included  under  this  heading 
was  derived  from  the  purchase  of  cotton  by  the  treasury  officials, 
the  cotton  later  being  sold  for  gold,  thus  involving  a  double  profit 
owing  to  the  premium  on  gold.  Receipts  from  miscellaneous  prop 
erty,  rents,  and  from  the  sale  of  captured  vessels  were  also  classed 
in  this  same  fund.  A  deduction  of  these  various  items  leaves 
$15,880,664.19,  as  the  receipts  from  the  sale  of  individual  cotton. 

One  very  important  item  in  this  last  total,  however,  was  a 
sum  amounting  to  $4,886,671  received  from  the  sale  of  cotton  cap 
tured  after  June  30,  1865,  nearly  all  of  which  was  Confederate, 

"Cong.  Globe,  52  Cong.,  1  sess.,  House  Bills  173,  455,  2764,  5451;  Ibid. 
vol.  29,  House  Bill  7618  ;  House  Reports,  50  Cong.,  1  sess.,  no.  646,  serial  2600 ; 
Ibid,  51  Cong.,  1  sess.,  no.  784,  serial  2809  ;  Ibid,  52  Cong.,  1  sess.,  no.  1377. 

M  House  Report,  52  Cong.,  1  sess.,  no.  1377. 

""Treas.  Dept.  Circular,  Jan.  9,  1900,  no.  4. 


54        THE  CONFISCATION  OF  PROPERTY  DURING  THE  CIVIL   WAR 

not  private,  cotton.  To  understand  the  nature  of  this  item  it  must 
be  explained  that  seizures  under  the  Captured  and  Abandoned  Prop 
erty  Act  did  not  cease  at  the  close  of  war.  Besides  the  collection 
of  private  property  the  treasury  officials  had  been  constantly  active 
in  seizing  the  property  of  the  Confederate  government.97  Much 
of  this  property  was  in  the  hands  of  private  holders  scattered  through 
the  insurrectionary  states,  and  the  treasury  agents  continued  their 
collections  of  this  sort  of  property  during  1865.  After  the  spring 
of  1865  the  seizures  of  the  Treasury  Department  were  chiefly  con 
fined  to  property  which  had  been  sold  to  the  Confederate  govern 
ment,  or  to  one  of  the  Confederate  states,  or  subscribed  to  the 
"produce  loan"  of  the  Confederacy,  or  delivered  as  military  sup 
plies  to  the  Confederate  army. 

In  collecting  this  property  of  the  Confederate  government,  much 
difficulty  was  experienced  in  avoiding  the  seizure  of  purely  private 
property.  Agents  \vould  often  take  cotton  held  in  private  posses 
sion  on  suspicion  that  it  belonged  to  the  Confederate  States.  If 
mistakes  were  discovered,  the  property  was  usually  released  to  the 
owner  at  once  without  requiring  proofs  of  loyalty.  Sometimes 
rather  loose  methods  were  used  in  the  collection  of  "C.  S.  cotton" 
after  the  war.  Mr.  X  would  come  to  the  agent  and  say,  "I  know 
where  some  C.  S.  cotton  is",  and  the  agent  would  engage  to  give 
him  a  portion  if  he  would  bring  it  in.  X  would  then  get  any  cotton 
he  could  lay  his  hands  on  and  deliver  it  over  to  the  agent.98  In  this 
and  similar  ways,  there  was  indiscriminate  seizure  of  private  prop 
erty  with  that  which  had  belonged  to  the  Confederacy,  but  on  the 
whole  considerable  caution  seems  to  have  been  exercised  by  the 
Treasury  Department.99  To  aid  them  in  avoiding  erroneous  seizure 
of  private  cotton,  agents  had  access  to  lists  which  had  been  kept 
by  "rebel"  cotton  agents,  showing  where  and  in  whose  possession 

97  House  Ex.  Doc.  39  Cong.,  2  sess.,  no.  97. 

98  In   some   instances   of  this   sort   as   high   as    75   per  cent,    of   the   proceeds 
was  to  be  paid  to  the  person  undertaking  the  risk  of  collecting  the  cotton.     The 
records  of  B.   F.   Flanders,   Supervising  Special  Agent  of  the   Treasury  Depart 
ment    at    New   Orleans   contains    numerous   such    instances.      These    records    are 
filed  with  the  Miscellaneous  Division  of  the  Treasury  Department. 

99  In    Secretary    McCulloch's    printed    circular    of    instructions,    Oct.    20,    1865, 
agents   were  warned  to  use  great  care   in  collecting  property   belonging  to  the 
Confederate  government,  or  subscribed  to  the  produce  loan,  "to  the  end  that  the 
rights    of    individuals    be    not    interfered   with,    or   the    property    of   unoffending 
persons  taken  from  them". 


RESTORATIONS  BY  THE  COURT  OF  CLAIMS  ?0 

C.  S.  A.  cotton  was  to  be  found.  Another  valuable  source  of  evi 
dence  was  to  be  had  in  the  county  tax  lists  from  which  all  public 
(Confederate)  cotton  was  excluded  as  not  subject  to  taxation,  and 
on  which  none  but  private  cotton  was  entered.100 

If  now  we  recur  to  the  above-mentioned  fifteen  millions  actually 
received  from  individual  cotton,  and  deduct  the  various  disburse 
ments  which  must  be  charged  against  this  sum,  such  as  expenses, 
amounts  allowed  by  the  Secretary  of  the  Treasury  on  claims, 
amounts  paid  on  judgments  of  the  Court  of  Claims,  or  allowed  by 
private  acts  of  Congress,  there  remains  a  balance  of  $4,992,349.92.m 
This  amount,  it  will  be  noticed,  is  substantially  equal  to  the  proceeds 
of  the  sale  of  cotton  which  belonged  to  the  Confederacy.  Hence  it 
is  maintained  by  the  Treasury  Department  that  no  such  "fund"  as 
that  mentioned  in  the  House  Committee's  report  exists,  and  that 
the  balance  now  in  the  treasury  represents  not  the  value  of  cotton 
due  to  individuals  whose  claims  have  been  debarred,  but  the  amount 
received  from  Confederate  cotton  which  the  United  States  is  under 
no  just  or  equitable  obligation  to  return. 

These  war  claims  are  still  being  constantly  urged.  When  pre 
sented  directly  to  the  Court  of  Claims  they  are  declared  ontlawed 
by  the  two-year  limitation.  If  they  appear  in  the  form  of  private 
petitions  to  Congress  for  equitable  relief,  they  are  ultimately  re 
ferred  to  the  Treasury  Department  for  recommendation,  and  the 
department  maintains  a  set  of  clerks  whose  whole  time  is  given  to 
examining  the  genuineness  of  such  claims.  In  this  rather  unsatis 
factory  shape  the  question  rests  today,  with  an  exaggerated  impres 
sion  abroad  as  to  the  number  of  owners  dispossessed,  and  with  a 
misapprehension,  even  on  the  part  of  Congressmen,  as  to  the  exist 
ence  of  a  "fund"  for  their  relief. 

100  Affidavit  of  V\"m.  A.  McCann,  Dec.  12,  1865,  Cotton  and  Captured  Property 
Record  no.  4027.  Files  of  the  Treas.  Dept. 

Dept.  Circular,  Jan.  9,  1900,  no.  4. 


BIBLIOGRAPHY 

GENERAL  ACCOUNTS 

BLAINE,  JAMES  G.,  Tzventy  Years  of  Congress,  from  Lincoln  to 
Garfield.  (Norwich,  Conn.,  1884.)  Suggestive  and  valuable, 
not  only  in  its  analysis  of  congressional  problems,  but  in  the 
pointed  characterizations  of  the  men  of  the  period;  some 
what  colored  in  the  treatment  of  confiscation  by  the  author's 
decided  northern  sympathies. 

DRAPER,  JOHN  W.,  The  Civil  War  in  America.  (New  York, 
1867.)  Rather  uncritical  and  lacking  in  documentation.  Very 
suggestive  regarding  the  financial  and  industrial  condition  of 
the  South,  though  superseded  in  this  respect  by  the  more 
scholarly  work  of  J.  C.  Schwab. 

DUNNING,  WM.  A.,  Essays  on  the  Civil  War  and  Reconstruc 
tion.  (New  York,  1898.)  A  discussion  of  the  legal  prob 
lems  arising  out  of  the  war,  and  their  relation  to  the  American 
constitutional  system.  For  a  critical  statement  regarding  this 
author's  treatment  of  confiscation,  see  supra  p.  16  n. 

HOSMER,  JAMES  K.,  The  Appeal  to  Arms,  1861-1863.  The  Am. 
Nation,  vol.  20.  (New  York,  1907.)  Deals  briefly  with 
both  Confederate  and  Federal  confiscation.  Not  strictly  ac 
curate  (see  supra  p.  35  n.). 

KETTEL,  THOMAS  P.,  Southern  Wealth  and  Northern  Profits. 
(New  York,  1860.)  Contains  much  statistical  information 
bearing  upon  the  economic  situation  in  the  South.  The 
author,  a  New  York  Democratic  editor,  pleads  in  vigorous 
argumentative  style  the  cause  of  the  South,  which  in  his 
opinion,  suffers  from  manifold  economic  grievances.  This 
decided  partisanship  renders  valueless  many  of  the  author's 
sweeping  generalizations. 

RHODES,  JAMES  F.,  History  of  the  United  States,  1850-1877. 
(New  York,  1899.)  This  well  known  work  deals  only  with 
the  course  of  legislation  bearing  upon  confiscation,  and  that 
briefly. 

(56) 


BIBLIOGRAPHY  57 

COLLECTIONS  OF  SOURCES   (UNOFFICIAL) 

ANNUAL  CYCLOPAEDIA.  A  yearly  summary  of  the  chief  happen 
ings  in  political  and  military  history.  The  account  of  pro 
ceedings  in  Congress  has  value  as  an  abridgment  of  the 
voluminous  record  in  the  Congressional  Globe.  The  volume 
for  1863  contains  a  useful  general  article  on  confiscation. 

FLEMING,  WALTER  L.,  Documentary  History  of  Reconstruction. 
(Cleveland,  O.,  1907.)  Valuable  for  picturesque  first-hand 
material  reflecting  the  condition  of  the  South  in  the  years 
following  1865. 

McPnERSON,  EDWARD,  The  Political  History  of  the  United 
States  of  America  during  the  Great  Rebellion.  (New  York, 
1864.)  A  varied  collection  of  documentary  material,  com 
piled  by  an  author  whose  position  as  clerk  of  the  House  of 
Representatives  afforded  peculiar  advantages.  The  subject 
matter  is  political  and  diplomatic  rather  than  military. 

McPHERSON,  EDWARD,  The  Political  History  of  the  United 
States  of  America  during  the  Period  of  Reconstruction. 
(Washington,  1871.)  A  continuation  of  the  earlier  collection 
of  documents.  Much  of  this  material  is  now  available  in 
other  convenient  forms. 

McPHERSON,  EDWARD,  Handbook  of  Politics  for  1868.  (Wash 
ington,  1868.)  As  relevant  to  the  subject  of  confiscation  this 
collection  includes  such  material  as  President  Johnson's  mes 
sages  and  speeches,  amnesty  proclamations,  etc. 

MOORE  FRANK,  The  Rebellion  Record.  (New  York,  1862- 
1869.)  Along  with  important  documents,  the  editor  has  in 
cluded  in  this  large  collection  a  deal  of  curious  material  of 
an  anecdotal  and  poetic  nature. 

OFFICIAL  PUBLICATIONS 

CONGRESSIONAL  RECORD. 

CONGRESSIONAL  GLOBE. 

FINANCE  REPORTS.  Annual  reports  of  the  Secretary  of  the 
Treasury  on  the  state  of  the  finances.  Besides  statistical  data 
these  reports  contain  general  descriptions  and  recommenda 
tions  touching  the  condition  of  the  national  finances,  and 
accounts  of  the  activities  of  the  various  branches  of  the 
Treasury  Department. 


58      THE  CONFISCATION  OF  PROPERTY  DURING  THE  CIVIL  WAR 

THE  WAR  OF  THE  REBELLION  :  OFFICIAL  RECORDS  OF  THE  UNION 
AND  CONFEDERATE  ARMIES.  In  addition  to  the  military  and 
naval  details  which  appear  in  this  authentic  collection,  there 
is  much  incidental  material  not  directly  connected  with  the 
operations  of  the  armies.  The  following  volumes  in  the  col 
lection  have  been  drawn  upon  for  material  regarding  con 
fiscation  and  the  military  treatment  of  property :  Series  I, 
volumes  15,  33,  37;  series  III,  volumes  1,  2,  3,  4,  5. 

RICHARDSON,  (Ed.)  Messages  and  Papers  of  the  Presidents. 
(Washington,  1897.) 

FREEMAN,  DOUGLAS  S.,  A  Calendar  of  Confederate  Papers. 
(Richmond,  1908.)  A  useful  guide;  contains  no  material 
directly  relative  to  confiscation. 

SENATE  JOURNAL. 
HOUSE  JOURNAL. 

HOUSE  EXECUTIVE  DOCUMENTS  : 

37  Cong.  3  sess.  No.  32.  Report  of  Att.  Gen'l  Bates  re 
garding  the  enforcement  of  the  confiscation  acts  in  the 
Dist.  of  Col.  Jan.  14,  1863. 

37  Cong.     3  sess.     No.  44.     The  seizure  of  the  property  of 

John  A.  Campbell  in  Washington. 
•  39  Cong.     1  sess.     No.  99.     Pardon  and  Amnesty. 

39  Cong.  1  sess.  No.  3.  Sec.  McCulloch's  Report  on  the 
Finances,  1865. 

39  Cong.  2  sess.  No.  1,  ser.  1285,  pp.  705  fol.  Report  of 
Com'rs  of  Freedmen's  Bureau.  Nov.  1,  1866. 

39  Cong.  2  sess.  No.  97,  ser.  1293.  Elaborate  report  re 
garding  "captured  and  forfeited  cotton".  Feb.  20,  1867. 

39  Cong.  1  sess.  No.  19,  ser.  1255.  Report  of  Com'r  of 
Freedmen's  Bureau. 

39  Cong.  2  sess.  No.  7,  ser.  1287.  Report  of  Com'r  of 
Freedmen's  Bureau. 

39  Cong.    2  sess.    No.  31,  ser.  1289.    List  of  special  pardons 
by  President  Johnson.     Jan.  9,  1867.     (26  pp.) 

40  Cong.    1  sess.    No.  32,  ser.  1311.    List  of  special  pardons 
by  President  Johnson.    July  19,  1867.     (84  pp.,  44  names 
per  page.) 


BIBLIOGRAPHY  59 

40  Cong.  2  sess.  No.  16,  ser.  1330.  List  of  special  pardons 
by  President  Johnson.  Dec.  4,  1867.  ( 147  pp.,  44  names 
per  page.) 

40  Cong.  2  sess.  No.  102,  ser.  1037.  Property  seized  in 
Louisiana — a  series  of  reports.  Jan.  16,  1868. 

40  Cong.  2  sess.  No.  288,  ser.  1343.  Judgments  in  the 
Court  of  Claims.  May  14,  1868. 

40  Cong.  2  sess.  No.  304,  ser.  1345.  Confederate  prop 
erty  in  Europe. 

40  Cong.  3  sess.  No.  1,  ser.  1367.  Com'r  Howard's  report 
regarding  Freedmen's  Bureau.  Oct.  14,  1868. 

40  Cong.    3  sess.  No.  82,  ser.  1374.    Report  of  Sec.  of  Treas. 
regarding  money  arising  from  captured  and  abandoned 
property.     Feb.  2,  1869. 

41  Cong.     2  sess.     No.   1,  ser.   1412,  pp.  497  foil.     Report 
of  Com'r  Howard,  Freedmen's  Bureau.     Oct.  20,   1869. 

41  Cong.    2  sess.     No.  89,  ser.  1417.     Estimate  of  expenses 
submitted  by  Geo.  S.  Parker,  Chief  of  captured  property 
division,  for  year  ending  June  30,  1870.     Contains  infor 
mation  regarding  the  prosecution  of  suits  for  the  recovery 
of  captured  property. 

43  Cong.     1  sess.     No.  146,  ser.  1610.     Report  of  total  pro 
ceeds  from  captured  and  abandoned  property.     Feb.  21, 
1874. 

HOUSE  MISCELLANEOUS  DOCUMENTS: 

38  Cong.     1  sess.     No.  78.    Letter  of  S.  P.  Chase  regarding 

the  sales  of  captured  property.     April  13,  1864. 
40  Cong.     1  sess.  '  No.  500.    List  of  judgments  in  the  Court 

of  Claims  between  March,  1863,  and  March,  1867. 
40  Cong.    2  sess.     No.  120,  ser.  1350.     Judgments  in  Court 

of  Claims— Cotton  cases.     April  20,  1868. 
40  Cong.     3  sess.     No.  4,  Ser.  1385.     List  of  judgments  in 

Court  of  Claims,  Dec.  7,  1868. 
HOUSE  REPORTS: 

42  Cong.    3  sess.    No.  43,  ser.  1576.    Claims  of  loyal  citizens 
for  private  property  taken  for  public  use. 

44  Cong.     1  sess.,  ser.  1708.    Brief  report  of  Judiciary  Com 
mittee  on  direct  taxes  in  insurrectionary  states.     Feb.  3, 
1876. 


60        THE  CONFISCATION   OF  PROPERTY  DURING   THE  CIVIL  WAR 

45  Cong.  3  sess.  No.  83,  ser.  1866.  Report  of  Committee 
on  Judiciary  regarding  persons  holding  permits  under 
President  to  secure  captured  property. 

50  Cong.     1   sess.     No.  646,   ser.  2600.     Report  of  House 
Committee  on  Judiciary,  recommending  legislation  touch 
ing  the  rights  of  claimants  under  the  Captured  Property 
Act. 

51  Cong.    1  sess.    No.  784,  ser.  2809.    Report  of  Committee 
on  Judiciary.     (Similar  to  Ser.  2600,  No.  646.) 

SENATE  EXECUTIVE  DOCUMENTS: 

37  Cong.  2  sess.  No.  16.  Report  by  Reverdy  Johnson  re 
garding  affairs  in  New  Orleans. 

40  Cong.  2  sess.  No.  22.  Report  of  Sec.  McCulloch  re 
garding  the  release  of  property  by  the  Treasury  Depart 
ment. 

40  Cong.  2  sess.  No.  58.  Report  by  Solicitor  of  the  Treas 
ury,  giving  total  proceeds  from  confiscations  under  act  of 
July  17,  1862. 

40  Cong.    3  sess.    No.  23*^,  ser.  1360.    Contains  the  various 
amnesty  proclamations. 

41  Cong.    2  sess.     No.  47,  ser.  1406.     Appropriations  to  de 
fend  certain  cotton  cases  in  Court  of  Claims.     Feb.  18, 
1870. 

41  Cong.  2  sess.  No.  98,  ser.  1407.  Lands  sold  for  direct 
taxes  in  insurrectionary  states.  June  9,  1870. 

43  Cong.  2  sess.  No.  23,  ser.  1629.  Extensive  statistics 
regarding  the  seizure  of  cotton  submitted  by  the  Secretary 
of  the  Treasury.  Feb.  3,  1875. 

50  Cong.  2  sess.  No.  115,  ser.  2612.  Report  of  gross  pro 
ceeds  of  cotton  and  other  property  received  under  the 
Captured  Property  Act. 

SENATE  MISCELLANEOUS  DOCUMENTS  : 

41  Cong.    2  sess.    No.  2,  ser.  1408.    Judgments  in  the  Court 

of  Claims.     Feb.  6,  1869. 
41  Cong.    3  sess.    No.  6,  ser.  1442.    Judgments  in  the  Court 

of  Claims.    Dec.  6,  1870. 
43  Cong.     1  sess.    No.  7,  ser.  1584.    Judgments  in  the  Court 

of  Claims.    Dec.  2,  1873. 


BIBLIOGRAPHY  61 

43  Cong.     1  sess.     No.  96.     Petition  of  G.  W.  P.  C.  Lee 
regarding  his  claim  on  the  Arlington  estate  in  Virginia. 

SENATE  REPORTS  : 

40  Cong.  3  sess.  No.  239,  ser.  1362.  Report  of  Committee 
on  Judiciary  regarding  President  Johnson's  sweeping  par 
dons.  The  tone  of  the  report  is  distinctly  hostile  to  the 
President.  Feb.  17,  1869. 

44  Cong.     1  sess.    No.  458,  ser.  1668.    Report  of  Committee 
on  Claims,  regarding  permits  granted  by  President  Lin 
coln  to  purchase  products  in  insurrectionary  states. 

STATUTES 

REVISED  STATUTES  OF  THE  UNITED  STATES.  (2d  Ed.  1878.) 
The  revision  includes  laws  remaining  in  force  on  Dec.  1,  1873. 

STATUTES  AT  LARGE. 

STATUTES  OF  THE  CONFEDERACY.  (Richmond,  1864.)  The  full 
title  reads:  The  Statutes  at  Large  of  the  Provisional  Gov 
ernment  of  the  Confederate  States  of  America.  Covers  the 
period  from  Feb.  8,  1861,  to  Feb.  18,  1862. 

REPORTS  OF  DECISIONS 

THE  FEDERAL  CASES,  comprising  cases  argued  and  determined 
in  the  circuit  and  district  courts  of  the  United  States,  1789- 
1880. 

OPINIONS  OF  THE  ATTORNEYS-GENERAL. 

UNITED  STATES  REPORTS. 

REPORTS  OF  CASES  DECIDED  IN  THE  COURT  OF  CLAIMS. 

Beginning  with  volume  iv  of  this  series,  a  large  number  of 
suits  are  reported  pertaining  to  Captured  and  Abandoned 
Property.  The  expressions  of  the  court  regarding  the  con 
fiscation  acts  are  more  or  less  incidental.  The  series  contains 
also  the  decisions  of  the  Supreme  Court  in  appealed  cases. 

AUTHORITIES  ON  INTERNATIONAL  LAW 

BURLAMAQUI,  J.  J.,  ( 1694-1748).  The  Principles  of  Natural  and 
Political  Law.  (Boston,  1792.)  The  work  originally  ap 
peared  at  Geneva,  Switzerland,  in  1747.  The  author  has 
much  to  say  of  "primitive  causes",  "divine  will",  and  "nat 
ural  law".  A  typical  treatise  from  the  standpoint  of  natural 
right  philosophy. 


62        THE   CONFISCATION"   OF   PROPERTY  DURING   THE   CIVIL   WAR 

BYNKERSHOEK,  CORNELIUS  VON.  (1673-1743.)  Quaestiones  Juris 
Publici.  An  eminent  Dutch  authority.  Much  quoted  by 
Chancellor  Kent. 

DANA,  R.  H.,  JR.  (Editor.)  Wheaton's  Elements  of  Interna 
tional  Law,  8th  Ed.  (Boston,  Cambridge,  1866.)  A  rare 
book,  out  of  print.  See  under  Wheaton. 

GROTIUS,  HUGO.  (1583-1645.)  De  Jure  Belli  ac  Pads.  (The 
original  work  appeared  in  Latin  in  Paris  in  1625,  several 
later  editions  being  published  during  the  author's  lifetime.  A 
convenient  English  edition  with  notes  is  to  be  found  in  the 
Universal  Classics  Library,  pub.  by  Walter  Dunne,  New  York 
and  London. )  This  epoch  making  work,  though  touched  by  the 
inspired  genius  and  human  sympathies  of  its  author,  never 
theless  reflects  the  spirit  of  the  time,  and  should  hardly  be 
expected  to  contain  a  statement  of  liberal  rules  regarding  the 
treatment  of  property  during  war.  The  author's  method  in 
Book  III  is  to  cite  the  opinions  of  former  jurists  and  to 
state  existing  usage.  He  supports  confiscation. 

HALL,  WILLIAM  EDWARD,  A  Treatise  on  International  Law. 
(Oxford,  1895,  4th  Ed.)  A  scholarly  discussion  of  inter 
national  usage  from  the  English  standpoint.  The  author's 
lines  of  interpretation  are  rather  liberal,  laying  stress  on 
recent,  advanced  practice. 

HALLECK,  MAJOR  GEN'L  H.  W..  International  Law,  or  Rules 
Regulating  the  Intercourse  of  States  in  Peace  and  War.  (Ed. 
Sir  Sherston  Baker,  Bart.  London,  1893.)  The  work  orig 
inally  appeared  at  San  Francisco  in  1861.  The  section  deal 
ing  with  the  rules  of  war  emphasizes  the  obligations  and 
rights  of  the  military  rather  than  the  political  authorities. 
Not  so  complete  or  authoritative  as  the  work  of  Wheaton. 

HEFFTER,  DR.  A.  G.,  Das  Huropaische  Volkerrecht  der  Gegen- 
wart  auf  den  bishcrigcn  Grundlagen,  bearbeitet  von  Dr.  F. 
H.  Gcffcken.  (Strassburg,  1881.)  The  original  work  of  Dr. 
Heffter,  a  professor  at  Berlin,  appeared  in  1844,  and  his 
treatise  still  occupies  the  front  rank  as  a  German  authority. 

KENT,  JAMES,  Commentaries  on  American  Laiv.  14th  Ed., 
edited  by  J.  M.  Gould.  (Boston,  1896.)  The  first  volume, 


BIBLIOGRAPHY  63 

dealing  with  the  law  of  nations,  appeared  in  1826,  and  had 
much  to  do  in  shaping  and  expounding  the  American  notions 
of  international  law  in  the  period  preceding  the  Civil  War. 

LAWRENCE,  T.  J.,  The  Principles  of  International  Lazv.  (3d.  Ed. 
Boston,  1907.)  A  general  treatise,  written  by  an  English  pro 
fessor  of  international  law.  In  point  of  view  the  work  re 
sembles  that  of  Professor  Hall. 

PUFFENDORF,  SAMUEL  VON.  (1632-1684.)  Lc  Droit  dc  la  Nature 
et  des  Gens.  The  work  originally  appeared  in  1672,  and  has 
been  frequently  translated  and  republished.  It  is  a  ponderous 
study  of  ancient  and  mediaeval  usage,  with  which  is  inter 
woven  seventeenth  century  doctrines  of  natural  right  philoso 
phy.  Frequently  cited  by  early  American  jurists. 

MOORE,  JOHN  BASSETT,  A  Digest  of  International  Laiv.  Wash 
ington,  1906.  House  Doc.  Ser.  Nos.  4202-4206.  A  valuable 
compendium  of  American  documents  relating  to  international 
law. 

RUTHERFORD,  THOMAS,  Institutes  of  Natural  Law.  London, 
1754.  (2cl.  Amer.  Ed.  Baltimore,  1832.)  Written  from  the 
standpoint  of  a  churchman  Who  emphasizes  philosophical  and 
moral  rather  than  legal  principles.  The  author,  less  scholarly 
than  for  instance  Puffendorf,  relied  largely  upon  the  pioneer 
work  of  Grotius. 

VATTEL,  EMMERICH  DE.  (1714-1767.)  The  Law  of  Nations, 
or  Principles  of  the  Law  of  Nature  applied  to  the  conduct 
and  affairs  of  nations  and  sovereigns.  (Ed.  Luke  White, 
Dublin,  1792.)  Vattel  was  perhaps  the  most  authentic  writer 
on  international  law  at  the  beginning  of  the  nineteenth  cen 
tury.  Though  much  of  his  reasoning  was  based  upon  the 
"law  of  nature",  he  relied  extensively  upon  modern  inter 
national  usage. 

WHEATON,  HENRY.  (1785-1848.)  Elements  of  International 
Law.  Boyd  Ed.  London,  1889.  The  first  appearance  of  this 
authentic  treatise  occurred  in  1836,  and  along  with  Kent  it 
remained  the  chief  American  authority  at  the  time  of  the 
Civil  War. 


64        THE  CONFISCATION   OF  PROPERTY  DURING   THE  CIVIL   WAR 

WHEATON,  HENRY,  Elements  of  International  Law.  8th  Ed. 
edited  with  notes  by  R.  H.  Dana,  Jr.  (Boston,  Cambridge, 
1866.)  This  edition,  which,  however,  is  rare,  is  fuller  in 
annotations,  especially  with  reference  to  the  treatment  of 
enemy  property,  than  that  of  Boyd. 

WOOLSEY,  T.  D.,  Introduction  to  the  Study  of  International  Law. 
(6th  Ed.  New  York,  1906.)  The  first  edition  of  this  work 
appeared  in  1860,  and  there  have  been  various  revisions.  It 
is  a  text-book  of  the  highest  authority,  and  is  equipped  with 
a  valuable  appendix,  in  which  are  contained  outlines  of  im 
portant  treaties,  and  comments  on  the  chief  authorities. 

TREATIES : 

Treaties  and  Conventions  concluded  betzveen  the  United  States 
and  other  Powers.  (Washington,  1889.)  Contains,  besides 
the  text  of  the  treaties,  notes,  accounts  of  negotiations,  and 
miscellaneous  matter.  The  collection  begins  with  July  4,  1776. 

DE  MARTENS,  G.  F.,  Nouveau  Recueil  de  Traites  .  .  .  des 
Puissances  et  Etats  de  1'Europe.  2d  Ed.  Goetting.,  1817-1835. 
Preceded  by  the  same  author's  "Recueil",  and  continued  by 
later  collections  and  supplements.  The  "Nouveau  Recueil" 
covers  the  period  from  1808  to  1839. 

BIOGRAPHICAL  WORKS 

BUTLER,  GENERAL  BENJ.  F.,  Butler's  Book.  (Boston,  1892.)  A 
curious  self -vindication  of  General  Butler's  remarkable  career. 
Chapter  xii  deals  briefly  with  the  enforcement  of  the  con 
fiscation  acts  in  Louisiana. 

PARTON,  JAMES,  General  Butler  at  New  Orleans.  (Boston,  1892.) 
A  fairly  reliable  narrative  of  Butler's  administration  in  Louis 
iana  in  1862. 

SHERMAN,  JOHN,  Recollections  of  Forty  Years.  (Chicago,  Lon. 
don,  1895.)  These  memoirs  cover  the  years  of  Sherman's 
career  as  Representative  and  Senator  from  Ohio  and  as  Sec 
retary  of  the  Treasury.  He  gives  in  vol.  I  an  account  of  the 
debate  in  the  House  on  the  second  confiscation  bill,  in  which 
he  took  prominent  part. 


BIBLIOGRAPHY  65 

SPECIAL  TREATISES  AND  MONOGRAPHS 

DANA,  R.  H.,  JR.,  Enemies'  Territory  and  Alien  Enemies.  (Bos 
ton,  Cambridge,  1864.)  Rare  and  out  of  print.  The  author  is 
concerned  chiefly  with  an  interpretation  of  the  Supreme 
Court's  decisions  in  the  Prize  causes. 

ECKENRODE,  HAMILTON  J.,  The  Political  History  of  Virginia. 
(Johns  Hopkins  Univ,i  Studies  in  History  and  Political 
Science,  series  XXII,  Baltimore,  1904.  Especially  serviceable 
in  its  description  of  the  Alexandria  government.  The  author, 
now  in  charge  of  the  archives  of  the  state,  has  made  extensive 
use  of  local  and  particularly  newspaper  material. 

LIEBER,  FRANCIS,  Instructions  for  the  government  of  the  armies 
of  the  United  States  in  the  Field.  (New  York,  1863.)  Is 
sued  as  General  Order  100,  Adjutant  General's  Office.  (Offic. 
Rec.  Ser.  Ill,  vol.  3,  pp.  148  fol.)  A  treatise  on  the  rules 
of  war  for  the  use  of  the  Union  officers  during  the  Civil  War. 

PEIRCE,  PAUL  SKEELS,  The  Frecdmen's  Bureau.  (Univ.  of  Iowa 
Studies,  vol.  Ill,  No.  1.  1904.)  Deals  rather  fully  with  the 
acquisition  and  treatment  of  confiscated  and  abandoned  lands 
by  the  bureau ;  valuable  also  for  detailed  documentary  refer 
ences. 

SCHWAB,  JOHN  C.,  The  Confederate  States  of  America,  a  finan 
cial  and  industrial  History  of  the  South  during  the  Civil  War. 
(New  York,  1901.)  Presents  a  careful  though  brief  analysis 
of  the  effects  of  Confederate  sequestration,  based  upon  a 
critical  study  of  published  statistical  sources.  The  Confed 
erate  records  in  the  treasury  archives  at  Washington,  a  valu 
able  source,  seem  not  to  have  been  consulted. 

NEWSPAPER  AND  MAGAZINE  MATERIAL 
The  Alexandria  Gazette,  Alexandria.  Va. 
The  National  Intelligencer,  Washington,  D.  C. 
The  New  Orleans  Price  Current,  New  Orleans,  La. 
The  Richmond  Dispatch,  Richmond,  Va. 

The  Provisional  Judiciary  of  Louisiana.  American  Law  Reg 
ister,  March,  1865.  vol.  XIII,  p.  257. 

MOORE,  FRED  W.,  Ph.  D.,  Louisiana  Politics  from  1863  to  1866. 
South  Atlantic  Rciieiv,  vol.  I,  p.  128. 


66         THE   CONFISCATION   OF   PROPERTY  DURING   THE   CIVIL   WAR 

UNPUBLISHED  MATERIAL 

For  the  subject  of  confiscation  and  captured  property  the  unpub 
lished  material,  though  voluminous,  is  for  the  most  part  difficult  of 
access,  and  unsuitably  arranged  for  purposes  of  historical  investi 
gation.  The  records  of  the  various  district  courts  of  the  United 
States  form  an  important  and  authentic  source  of  information,  and 
are  usually  well  preserved,  except  where  some  accident  has  caused 
their  destruction,  as  in  the  case  of  the  Chicago  fire  of  1871.  The 
entries,  however,  in  the  docket  books,  where  a  convenient  chrono 
logical  arrangement  is  preserved,  are  not  always  definite  enough  to 
distinguish  sharply  the  various  kinds  of  seizure,  and  a  more  laborious 
examination  of  the  court  files  becomes  necessary.  Among  these 
papers  are  contained  the  original  records  of  every  proceeding  con 
nected  with  the  trial :  the  libel,  the  plaintiff's  answer,  a  copy  of  the 
monition,  the  various  depositions  and  affidavits,  the  writ  of  "vendi", 
the  marshal's  return  of  sale,  the  certificate  of  the  court's  final 
process  with  the  written  opinion,  perhaps,  of  the  judge,  and  what 
ever  petitions  for  appeal  or  restoration  may  have  been  submitted 
after  the  condemnation  of  the  property. 

The  records  of  the  Attorney-General's  office  for  the  period  of 
the  Civil  War  are  disappointing.  No  systematic  series  of  reports 
was  kept  which  would  afford  a  comprehensive  notion  of  the  extent 
of  the  enforcement  of  the  Confiscation  Acts  throughout  the  country. 
Communication  between  this  office  and  the  various  district  attorneys 
and  marshals  \vas  incidental  and  casual  rather  than  regular,  while 
the  more  important  portions  of  the  correspondence  with  the  other 
executive  departments  have  been  published  in  the  series  of  congres 
sional  documents.  The  material,  moreover,  is  loosely  arranged  and 
poorly  housed,  and  much  of  it  (e.  g.,  the  letters  received),  is  entirely 
without  index.  There  is  enough  here,  however,  to  reveal  the  prob 
lems  encountered  in  the  enforcement  of  the  acts,  the  methods  of 
evasion  and  interference  resorted  to,  and  the  nature  of  the  instruc 
tions,  usually  not  very  satisfactory,  which  were  sent  out  from  Wash 
ington. 

The  voluminous  records  touching  "captured  and  abandoned 
property''  are  deposited  in  the  office  of  the  Miscellaneous  Division 
of  the  Treasury  Department.  This  varied  mass  of  material  occupies 


BIBLIOGRAPHY  67 

several  scores  of  cubic  feet,  and  contains  letter  books  and  reports 
of  treasury  agents,  papers  collected  in  the  adjudication  of  "cotton 
claims",  plantation  records,  reports  of  inspectors,  etc.  In  this  office 
there  is  also  deposited  a  considerable  mass  of  Confederate  records 
touching  the  sequestration  of  property,  the  "cotton  loan",  and  the 
various  transactions  of  the  Confederate  treasury.  Some  of  these 
records  were  captured,  and  some  were  purchased.  A  large  part 
of  this  material  has  been  recently  indexed  by  the  card  system,  and 
is  still  being  constantly  used  for  securing  data  relating  to  various 
kinds  of  "war  claims".  Like  much  of  the  government's  records,  how 
ever,  it  is  poorly  housed  and  almost  inaccessible  for  purposes  of 
historical  investigation.  For  an  effective  use  of  the  material  found 
in  the  Treasury  Department  a  considerable  amount  of  discrimination 
is  necessary.  Even  in  the  case  of  treasury  warrants,  which  are 
presumably  the  most  accurate  and  definite  of  documents,  it  is  in 
some  cases  necessary  to  "go  behind  the  face  of  the  return",  for  in 
stances  are  not  wanting  in  which  these  warrants  have  stated  incor 
rectly  the  source  from  which  money  has  been  derived. 


INDEX 


ABANDONED  ESTATES,  in  gen 
eral,  44;  in  Louisiana,  44;  law  re 
lating  to,  39;  leased  by  treasury 
agents,  44;  methods  of  adminis 
tration,  45  foil.;  treated  as  virtual 
confiscation,  45;  placed  in  charge 
of  Freedmen's  Bureau,  47.  See 
also  Captured  and  Abandoned 
Property. 

ADMIRALTY  PROCEDURE,  con 
formity  to,  in  confiscation  cases, 
11. 

AMENDMENTS,  bearing  of  fifth 
and  sixth,  30. 

AMNESTY,  see  Pardon  and  Am- 
nesty. 

ARKANSAS,  collection  of  direct 
taxes  in,  34. 

ARLINGTON,  seizure  of,  35  foil. 

ATTAINDER,  9,  12;  interpretation 
of,  24. 

ATTORNEY-GENERAL,  has  gen 
eral  sxiperintendence  of  confisca 
tion  proceedings,  13;  declines  to 
advise  law  officers,  14;  size  and 
importance  of  the  office  in  period 
of  Civil  War,  13;  records  in  the 
office,  14,  66.  See  also  Speed. 

BELLIGERENT  RIGHT  OF  CON 
FISCATION,  16  foil. 

BETTS,  Judge  in  southern  district, 
N.  Y.,  decision  of,  22. 

ELAINE,  J.  G.,  work  cited,  56. 

BLAIR,  SAMUEL  S.,  Representa 
tive  from  Pennsylvania,  views  of, 
20  n. 

BLAIR,  FRANCIS  P.,  a  Representa 
tive  from  Missouri,  vote  on  con 
fiscation,  11  n. 

BORDER  STATES,  Attitude  on  con 
fiscation,  9. 

BROWN,  WM.  G.,  alluded  to,  11  n. 

BURLAMAQUI,  views  on  confisca 
tion,  17  n. 

BYNKERSHOEK,  views  on  confisca 
tion,  17  n.;  62. 

CAPTURED  AND  ABANDONED 
PROPERTY,  Act  of  March  12, 
1863,  relating  to,  39;  methods  of 


collecting,  40  foil.;  sold  in  loyal 
states,  41;  contracts  for  collecting, 
41;  fraudulent  practices  in  con 
nection  with,  42;  total  proceeds 
arising  from,  43;  restoration  of, 
51;  records  pertaining  to,  40  n. ; 
so-called  "fund",  53,  55.  See  also 
Restoration,  Court  of  Claims,  Cot 
ton,  Treasury  Department,  Aban 
doned  Property. 

CHASE,  SALMON  P.,  Sec.  of  Treas 
ury,  advises  confiscation  of  rebel 
property,  8. 

CIVIL  WAR,  legal  character  of,  16, 
29. 

CONFEDERATE  GOVERNMENT, 
sequestration  law,  8;  officers  of, 
subject  to  confiscation,  10;  orders 
burning  of  cotton,  41  n.;  collec 
tion  after  the  war  of  property  be 
longing  to,  54. 

CONFISCATION,  Act  of  August  6, 
1861,  8;  Act  of  July  17,  1862,  9, 
10;  petitions  for,  8;  suggested  by 
Secretary  Chase,  8;  superintend 
ence  of  proceedings,  13;  extent, 
15;  methods  of  securing  informa 
tion  relative  to  confiscable  prop 
erty,  13;  cases  in  Indiana,  15  n. ; 
District  of  Columbia,  15  n. ;  de 
clared  a  belligerent  right  by  Su 
preme  Court,  17-18;  constitution 
ality  of,  29  foil.;  criminal  charac 
ter  of,  21;  effect  of  pardons  on, 
46  n. ;  suspension  of  proceedings, 
46  n. ;  property  turned  over  to 
Freedmen's  Bureau,  47. 

CONGRESS,  Proceedings  in,  rela 
tive  to  confiscation,  8-12;  action 
regarding  termination  of  rebel 
lion,  52. 

CONSTITUTIONALITY,  of  confisca 
tion  acts,  29  foil. 

COSTS,  in  confiscation  cases,  15  n. 

COTTON,  burned  by  Confederate 
authorities,  41  n. ;  collected  by 
treasury  agents,  40;  seized  after 
the  war,  54;  decision  of  Supreme 
Court  relative  to,  43;  claims  for, 
allowed  by  Treasury  Department, 
47;  purchase  of,  by  Treasury  offi 
cials,  53. 


(68) 


INDEX 


69 


COURT  OF  CLAIMS,  designated  as 
tribunal  to  determine  claims  for 
captured  and  abandoned  property, 
49  n.;  jurisdiction  over  captured 
property,  49;  Treasury  Depart 
ment's  jurisdiction  yields  to,  47; 
restoration  of  property  by,  49  foil. 

CRIMINAL  CHARACTER  of  con 
fiscation  proceedings,  21,  25. 

DAVIS,  GARRETT,  Senator  from 
Kentucky,  20  n. 

DAVIS,  JEFFERSON,  41  n. 

DEBATES,    see    Congress. 

DEFAULT,   30. 

DEMOCRATS,  in  thirty-seventh 
Congress,  attitude  on  confisca 
tion,  11. 

DIRECT  TAX  SEIZURES,  provided 
by  Act  of  June  7,  1862,  33;  table 
of  proceeds  from  this  source,  34; 
seizure  of  Arlington,  35  foil.; 
seizures  in  South  Carolina,  36; 
restoration,  38. 

DISTRICT  COURTS  of  the  United 
States,  jurisdiction  in  confisca 
tion  cases,  13;  records  of,  66. 

DISTRICT  OF  COLUMBIA,  seiz 
ures  of  property  in,  14  n.;  15  n. 

DUNNING,  WM.  A.,  treatment  of 
confiscation,  16  n. 

DURATION,  see  Forfeiture. 

ELLIOT,  THOS.  D.,  Representa 
tive  from  Mass.,  20  n. 

EX  PARTE  PROCEEDINGS,  31. 
EXTENT  of  confiscation,  15. 

FESSENDEN,  Secretary  of  Treas 
ury,  alluded  to,  40  n. 

FINANCIAL  POLICY  OF  CONFIS 
CATION,  15. 

FLORIDA,  collection  of  direct  taxes 
in,  34. 

FORFEITURE,  DURATION  OF,  12, 
24-25,  26-28.  See  also  Seizure,  Con 
fiscation,  Direct  Tax. 

FREEDMEN'S  BUREAU,  estab 
lished,  47;  secures  control  of 
abandoned  lands  and  other  prop 
erty,  47;  continues  lease  system, 
47;  restores  property,  47-48. 


GRIER,  Justice,  opinion  in  Prize 
Cases,  21. 

GROTIUS,  cited  on  Confiscation,  17 
n.;  62. 

HALL,  WM.  E.,  authority  on  inter 
national  law,  62. 

HALLECK,  MAJOR  GENERAL  H. 
W.,  cited  as  authority  in  interna 
tional  law,  16  n. ;  62. 

HEARING,  Right  of,  23. 

HICKMAN,  JOHN,  alluded  to,  11  n. 

HOLABIRD,  COL.  E.  S.,  Chief  Quar 
termaster  at  New  Orleans,  44  n. 

HOSMER,  J.  K.,  treatment  of  con 
fiscation,  35  n. ;  56. 

HOWARD,  JACOB  B.,  Representa 
tive  from  Michigan,  views  on 
rebel  status,  20  n. 

HOWARD,  GENERAL  O.  O.,  Com 
missioner  of  Freedmen's  Bureau, 
48. 

INDIANA,  Confiscation  in,  15  n. 

INTERNATIONAL  LAW,  bearing 
of,  on  confiscation,  16  foil.;  Amer 
ican  practice  in  interpreting,  18; 
bibliography,  61-64. 

JOHNSON,  ANDREW,  President  of 
United  States,  issues  pardon  proc 
lamation,  46  n. ;  issues  instruc 
tions  regarding  property  in  hands 
of  Freedmen's  Bureau,  47. 

JOINT  RESOLUTION,  explanatory 
of  second  confiscation  act,  12,  24. 

JUDICIARY  COMMITTEE  of  House 
of  Representatives,  35;  report  on 
captured  property  claims,  52. 

JURISDICTION,  in  confiscation  pro 
ceedings,  13. 

JUS  BELLI,  18  n.;  20. 

KANSAS,  confiscation  in,  15  n. 
KENT,      CHANCELLOR      JAMES, 
cited  on  confiscation,  18  n. 

LAWRENCE,  T.  J.,  authority  on  in 
ternational  law,  63. 

LEE,  G.  W.  P.  C.,  petitions  for  the 
satisfaction  of  claim  to  Arling 
ton,  35. 

LEE,  GENERAL  R.  E.,  estate  seized, 
35. 


70 


INDEX 


LEX  TALIONIS,  20. 

LINCOLN,  ABRAHAM,  President  of 
United  States,  veto  message  for 
second  confiscation  act,  11-12;  is 
sues  permits  to  trade  within  rebel 
lines,  42;  pardon  proclamation, 
46  n. 

LOUISIANA,  abandoned  property 
in,  44;  confiscations  in,  15. 

MARSHALS,  Duties  of,  in  Confisca 
tion  Cases,  13. 

MARSHALL,  JOHN,  argument  in 
Ware  v.  Hylton,  17  n. ;  opinion  in 
Brown  v.  U.  S.,  17  n. 

MARYLAND,  military  seizures  in, 
14  n. 

McCULLOCH,  HUGH,  Secretary  of 
Treasury,  instructions  regarding 
seizure  of  cotton,  40  n. ;  54  n. 

MILITARY  SEIZURE  OF  PROP 
ERTY,  14  n. 

MILLER,  SAMUEL,  of  Virginia, 
property  confiscated,  29. 

MISCELLANEOUS  DIVISION  of 
Treasury  Department,  66-67. 

NEGROES,  treatment  of,  under 
lease  system  in  south,  45. 

NEW  ORLEANS,  Abandoned  prop 
erty  in,  44. 

NEW  YORK,  Confiscation  in,  15. 

NOELL,  JOHN  W.,  vote  regarding 
confiscation,  11  n. 

NON-INTERCOURSE,  regulations 
pertaining  to,  19;  42. 

PARDON  AND  AMNESTY,  Presi 
dent  authorized  to  declare,  11 ; 
proclamations,  46  n.;  effect  on 
confiscation  proceedings,  46  n. ; 
effect  on  property  held  by  Freed- 
men's  Bureau,  47;  effect  upon  res 
toration  of  captured  and  aban 
doned  property,  51. 

PERMIT,  for  collecting  cotton,  42; 
54. 

PERSONA  STANDI,  22. 

PLANTATION  BUREAU,  44. 

PRIZE,  17;  Prize  Cases,  21,  29. 

PROCEEDS,  from  confiscation,  15; 
from  direct  tax  sales,  34;  from 
captured  and  abandoned  property, 
43. 


PROCEDURE,  in  confiscation  cases, 
13  foil. 

PROPERTY,  exemption  from  cap 
ture,  16;  miscellaneous  character 
of,  15  n.;  methods  of  seizing,  13. 

PUFFENDORF,  views  on  confisca 
tion,  17  n. ;  63. 

REBELS,  status  of,  19  foil.;  stand 
ing  in  court,  22. 

REBELLION,  character  of,  16,  19, 
29;  date  of  termination,  52. 

REPUBLICANS,  in  thirty-seventh 
Congress,  attitude  on  confiscation, 
11. 

RESTORATION  OF  PROPERTY, 
forfeited  by  direct  tax  levy,  38; 
forfeited  by  judicial  process,  46  n. ; 
provision  in  pardon  proclamation, 
46  n.;  action  of  Treasury  Depart 
ment,  47;  action  of  Freedmen's 
Bureau,  47  foil.;  action  of  Court 
of  Claims,  49  foil. 

REVERSIONARY  RIGHTS,  in  con 
fiscated  property,  26  foil. 

RUTHERFORD,  views  on  confisca 
tion,  17  n.;  63. 

SEIZURE,  method  of,  in  judicial 
confiscation,  13. 

SELECT  COMMITTEE,  on  confisca 
tion  bill  in  thirty-seventh  Con 
gress,  10. 

SEQUESTRATION,         Confederate 

Statute,  8. 

SITUS,  bearing  of,  upon  jurisdic 
tion  in  confiscation  cases,  13. 

SLAVES,  not  treated  in  present 
study  iii;  included  in  confiscation 
law,  8. 

SOLICITOR  of  the  Treasury  De 
partment,  Report  of,  regarding  ex 
tent  of  confiscation,  15  n. 

SOUTH  CAROLINA,  Direct  tax 
seizures  in,  34,  36  foil. 

SPEED,  Attorney-General,  policy 
regarding  confiscation  after  the 
war.  46  n. 

SPRAGUE,  JUSTICE,  opinion  of,  20. 

STEVENS,  THADDEUS,  Represent 
ative  from  Pennsylvania,  alluded 
to,  8. 


INDEX 


71 


STORY,  JUSTICE,  dissents  in  Brown 

v.  U.  S.,  18  n. 
SUPREME  COURT,  decisions  of,  17, 

18,  24,  26,  29,  36,  43,  47,  51,  52. 

TAX,  see  Direct  Tax. 

TENNESSEE,  collection  of  direct 
tax  in,  34. 

TRAITORS,  20  n.;  21. 

TREASON,  12,   20. 

TREASURY  DEPARTMENT,  or 
ganization  for  collecting  cap 
tured  property,  40;  lease  system 
for  abandoned  estates,  44;  re 
leases  of  property  by,  47;  termi 
nation  of  control  over  captured 
property,  47;  purchase  of  cotton, 
53. 

TRUMBULL,  LYMAN,  Senator  from 
Illinois,  action  with  reference  to 
confiscation  bill,  9. 

UNDERWOOD,  JUDGE,  opinion  in 

Latham  case,  24. 
UNION     SYMPATHIZERS     in    the 

South,  treatment  of,  50. 


UNIONISTS,  in  thirty-seventh  Con 
gress,  attitude  on  confiscation,  11. 

VATTEL,     views     on     confiscation, 

17  n.;  63. 
VIRGINIA,    confiscation    in,    15   n.; 

collection  of  direct  taxes  in,  34; 

re-establishment   of   authority   of 

United  States  in,  46  n. 
VOTE  on  confiscation,  analysis  of, 

11. 

WALLACE,  GENERAL  LEW, 
orders  seizure  of  rebel  property  in 
Maryland,  14  n. 

WAR  CLAIMS,  55. 

WAR  POWER,   29. 

WARRANTY,  covenant  of,  28  n. 

WEST  VIRGINIA,  seizure  of  prop 
erty  in,  15. 

WHEATON,  HENRY,  views  on  con 
fiscation,  18  n. ;  63. 

WOOLSEY,  THEODORE  D.,  author 
ity  on  international  law,  64. 


TABLE   OF   CASES 


Alexander's   Cotton,    (Mrs.),   41    n., 

43  n. 

Amy  Warwick  case,  20. 
Armstrong's   Foundry,   46  n. 
Avegne  v.  Schmidt,  27  n. 

Bigelow  v.  Forrest,  12  n.,  24-25. 
Briggs  v.  U.  S.,  40  n.,  43  n. 
Brown  v.  U.  S.,  17  n. 
Burton  v.  Smith,  26  n. 

Chaplin  v.  U.  S.,  38  n. 
Confiscation  Cases,  The,  22  n. 
Conrad  v.  Waples,  12  n. 
Court  of  Claims,  citation  of  cases, 
50  n. 

Day  v.  Micou,  25  n. 
Glover  et  al.  v.  U.  S.,  38  n. 

Hempstead  v.  Dickson,  26  n. 
Hilton  v.  Guyot,  18  n. 
Hogarth  v.  U.  S.,  38  n. 

111.  Cent.  R.  R.  v.  Bosworth,  27. 

Jecker  v.  Montgomery,  22  n. 
Jenkins  v.   Collard,  27  fol. 

Kirk  v.  Lynd,  25  n. 
Knote  v.  U.  S.,  46  n. 

Latham,  Hugh,  24. 
McKee  v.  U.  S.,  42  n. 


McVeigh  v.  U.  S.,  23,  31. 

Means  v.  U.  S.,  38  n. 

Miller  v.  U.  S.,  17,  21,  29  fol. 

Ouachita  Cotton  case,  42  n. 

Paquette  Habana,  The,  18  n. 
Prize  Cases,  The,  21,  29. 

Semmes  v.  U.  S.,  46  n. 
Semple  v.  U.  S.,  22  n. 
Shields  v.  Schiff,  27  n. 

Tyler  v.  Defrees,  22  n. 

U.  S.  v.  Anderson,  51  fol. 

U.  S.  v.  Clarke,  25  n. 

U.  S.  v.  Dunnington,  28  n. 

U.  S.  v.  Klein,  51  fol. 

U.  S.  v.  Lee,  36. 

U.  S.  v.  Padelford,  39  n.,  51  n. 

U.  S.  v.  Winchester,  40  n. 

U.  S.  v.  1756  Shares  of  Stock,  13  n. 

U.  S.  v.  129  Packages,  42. 

Wallach  v.  Van  Riswick,  12  n.,  26 

foL 

Waples  v.  Hays,  25  n. 
Ware  v.  Hylton,  17  n. 
Whitfield  v.  U.  S.,  43  n. 
Wiley  Case,  13  n.,  22. 
Williams  v.  Bruffy,  21  n. 
Windsor  v.  McVeigh,  23  . 

Young  v.  U.  S.,  40  n. 


(72) 


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